Chunhua Jiang v. Lynch ( 2015 )

13-2618
Jiang v. Lynch
BIA
Nelson, IJ
A073 620 240
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of August, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 CHUNHUA JIANG, AKA LONG SHENG JIANG,
15 Petitioner,
16
17 v. 13-2618
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.*
22 ______________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, PC, New York, NY.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for former Attorney
General Eric H. Holder, Jr.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; David V. Bernal, Assistant
3 Director; Lindsay W. Zimliki,
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED in part and DENIED in part.
12 Petitioner Chunhua Jiang, a native and citizen of
13 China, seeks review of a June 21, 2013 order of the BIA,
14 affirming the December 3, 2012 decision of an Immigration
15 Judge (“IJ”), which denied his motion to reopen as untimely.
16 In re Chunhua Jiang, No. A073 620 240 (B.I.A. June 21,
17 2013), aff’g No. A073 620 240 (Immig. Ct. N.Y. City Dec. 3,
18 2012). We assume the parties’ familiarity with the
19 underlying facts and procedural history in this case.
20 Under the circumstances of this case, we review the
21 IJ’s decision as modified by the BIA, i.e., minus the bases
22 for denying relief that were not relied upon by the BIA.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
24 522 (2d Cir. 2005).
25 We review the BIA’s decision affirming an IJ’s denial
26 of a motion to reopen for abuse of discretion. Iavorski v.
2
1 INS, 232 F.3d 124, 128 (2d Cir. 2000); see Ali v. Gonzales,
2 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). An alien
3 seeking to reopen proceedings is required to file a motion
4 to reopen no later than 90 days after the date on which the
5 final administrative decision was rendered. See 8 U.S.C.
6 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no
7 dispute that Jiang’s 2012 motion was untimely because his
8 order of removal became final in 1997. See 8 U.S.C.
9 § 1101(a)(47)(B)(ii). Jiang contends, however, that the
10 Chinese government’s awareness of his religious activities
11 in the United States, and its corresponding threats, and
12 generally worsened conditions for underground church members
13 in China, constitute materially changed conditions excusing
14 the untimeliness of his motion. See 8 U.S.C.
15 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
16 The BIA did not abuse its discretion in finding that
17 Jiang failed to demonstrate a material change in country
18 conditions on the basis of his generalized evidence. “In
19 determining whether evidence accompanying a motion to reopen
20 demonstrates a material change in country conditions that
21 would justify reopening, [the BIA] compare[s] the evidence
22 of country conditions submitted with the motion to those
3
1 that existed at the time of the merits hearing below.” In
2 re S-Y-G-, 24 I. &N. Dec. 247, 253 (B.I.A. 2007). However,
3 as the BIA observed, Jiang failed to support his motion with
4 any evidence of conditions for underground church members at
5 the time of his 1997 merits hearing. He was therefore
6 unable to demonstrate materially changed conditions on the
7 basis of his generalized evidence. See id.
8 Whether Jiang established materially changed country
9 conditions based on his individualized evidence is a closer
10 question. The BIA found that the government’s awareness of
11 Jiang’s religious activities in the United States, and its
12 corresponding threats, were changes in Jiang’s personal
13 circumstances. The BIA has not, however, addressed in a
14 precedential decision whether a change that pertains to a
15 particular individual in his home country, as opposed to a
16 general change in policy, is sufficient to establish the
17 “changed country conditions” necessary to excuse the 90–day
18 time limitation on motions to reopen. Nor have we addressed
19 the question in a precedential decision. See, e.g., Chang
20 Fan Zeng v. Holder, 487 F. App’x 643, 644-45 (2d Cir. 2012).
21 Moreover, there is some ambiguity in the statute and
22 regulation, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 U.S.C. §
4
1 1003.2(c)(2), and other circuits apparently have found
2 changed country conditions based in part on changed personal
3 circumstances. See, e.g., Joseph v. Holder, 579 F.3d 827,
4 834 (7th Cir. 2009); Mei Ya Zhang v. U.S. Att’y Gen., 572
5 F.3d 1316, 1320 (11th Cir. 2009). In light of these
6 circumstances, we remand to the BIA. When reviewing a
7 non-precedential BIA decision, we have often remanded so
8 that “the BIA [can] by published opinion interpret a statute
9 it is charged with enforcing.” Dobrova v. Holder, 607 F.3d
10 297, 300 (2d Cir. 2010); see also Jian Hui Shao v. BIA, 465
11 F.3d 497, 502-03 (2d Cir. 2006). One of the many reasons
12 for this procedure is that “any effort expended by us
13 interpreting the statute would be for nought should the BIA
14 subsequently reach a different, yet reasonable,
15 interpretation.” Jian Hui Shao, 465 F.3d at 502; see also
16 Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116-17
17 (2d Cir. 2006) (setting forth numerous factors in favor of
18 remand).
19 For the foregoing reasons, the petition for review is
20 GRANTED in part and DENIED in part, and the case is REMANDED
21 to the BIA for further proceedings consistent with this
22 order. As we have completed our review, any stay of removal
23 that the Court previously granted in this petition is
5
1 VACATED, and any pending motion for a stay of removal in
2 this petition is DENIED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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