Xian Jiang Dong v. Holder , 379 F. App'x 54 ( 2010 )

09-2441-ag
Dong v. Holder
BIA
A 076 505 709
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of May, two thousand ten.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
XIAN JIANG DONG,
Petitioner,
v. 09-2441-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michelle G. Latour,
Assistant Director ; Michele Y.F.
Sarko, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Xian Jiang Dong, a native and citizen of the People’s
Republic of China, seeks review of a May 14, 2009, order of
the BIA denying his motion to reopen. In re Xian Jiang Dong,
No. A 076 505 709 (B.I.A. May 14, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of Dong’s motion to reopen
for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien may only file one motion to reopen
and must do so within 90 days of the final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
However, there is no time or numerical limitation if the
alien establishes materially “changed country conditions
arising in the country of nationality.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
Here, the BIA did not abuse its discretion in denying Dong’s
motion to reopen, which was indisputably untimely.
As the BIA found, Dong’s alleged membership in the
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Federation for Democracy in China was a change in his
personal circumstances, not a change in country conditions,
and cannot therefore be the basis of a finding of changed
circumstances so that the 90-day time limitation does not
apply. Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.
2006). Dong argues, however, that he has established not
only a change in his personal circumstances but also a
change in country conditions in China in that conditions for
pro-democracy activists publishing articles online (as he
has done) have worsened there since the time of the IJ’s
decision. Neither this Court nor the BIA has squarely
addressed the question “whether a petitioner whose changed
personal conditions (which result in his falling into a
category of individuals threatened by changed country
conditions) can rely on those changed country conditions in
an untimely motion to reopen where the underlying change in
personal conditions postdated his order to depart.” Fong
Chen v. Gonzales, 490 F.3d 180, 184 (2d Cir. 2007) (per
curiam), superseded on other grounds by Fong Chen v.
Mukasey, 255 Fed. Appx. 573 (2d Cir. 2007).
Assuming arguendo that a petitioner in such a position
may rely on changed country conditions in support of a
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motion to reopen, however, the BIA did not abuse its
discretion in concluding that Dong had failed to make the
requisite showing. Its determination that evidence that
“the Chinese government has tightened its censorship and
control of political dissent on the [I]nternet” did not
constitute a new form of persecution or a new prohibition on
pro-democracy activity, but merely reflected “an effort by
authorities to address another method of transmitting barred
material,” was not “devoid of any reasoning” or otherwise an
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233-34
(2d Cir. 2005).
Dong now argues that the evidence he submitted in
connection with his motion to reopen established not only
that the Chinese government had increased its control of the
Internet but that it had more generally increased its
harassment and persecution of dissidents. Only under a
generous reading of the affidavit that he submitted with his
motion to reopen can Dong be said to have made this as a
separate argument before the BIA, so that it is questionable
whether we may properly consider it now. See Lin Zhong v.
U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
Assuming that we may, we note that amidst more than two
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hundred pages of documents submitted along with his motion,
Dong now points primarily to two sentences contained in two
Department of State Country Reports on Human Rights
Practices in China indicating, in general terms, that
harassment and detention of individuals perceived as
critical of or threatening to government authority had
increased in 2005 and 2006. Given the “heavy burden” that
an alien seeking to reopen his case carries, INS v. Abudu,
485 U.S. 94, 110 (1988), we are not prepared to hold that
the BIA abused its discretion in denying Dong’s motion based
on this record.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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