Li v. Barr ( 2020 )

18-3129
Li v. Barr
BIA
A095 361 554
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 TO 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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 14th day of December, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 XIAO BIAO LI,
15 Petitioner,
16
17 v. 18-3129
18 NAC
19 WILLIAM P. BARR, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Anthony Guidice, Fairport, NY.
25
26 FOR RESPONDENT: Jeffrey Bossert Clark, Acting
27 Assistant Attorney General; Paul
28 Fiorino, Senior Litigation
29 Counsel; Timothy Bo Stanton, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5
6 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
7 AND DECREED that this petition for review of a decision of
8 the Board of Immigration Appeals (“BIA”) is DENIED.
9 Petitioner Xiao Biao Li, a native and citizen of the
10 People’s Republic of China, seeks review of a September 26,
11 2018 decision of the BIA denying his motion to reopen his
12 removal proceedings. In re Xiao Biao Li, No. A095 361 554
13 (B.I.A. Sept. 26, 2018). We assume the parties’ familiarity
14 with the underlying facts and procedural history.
15 We have reviewed the BIA’s denial of the motion to reopen
16 for abuse of discretion and considered whether its conclusion
17 regarding country conditions is supported by substantial
18 evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–
19 69 (2d Cir. 2008). Li moved to reopen his removal proceedings
20 to reapply for asylum, asserting that China’s treatment of
21 gay men had worsened, the Chinese government would target him
22 because it had learned that he is gay, and changes in
23 attitudes towards gay people in the United States made it
24 more likely that he would now be granted asylum.
25 It is undisputed that Li’s motion was untimely because
2
1 he filed it 14 years after the BIA’s 2004 decision affirming
2 his removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
3 § 1003.2(c)(2). However, the time limitation for filing a
4 motion to reopen does not apply if reopening is sought to
5 apply for asylum and the motion “is based on changed country
6 conditions arising in the country of nationality . . . , if
7 such evidence is material and was not available and would not
8 have been discovered or presented at the previous
9 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
10 C.F.R. § 1003.2(c)(3)(ii). Even if a movant shows that
11 changed conditions exist, the agency may deny the motion if
12 the new evidence does not demonstrate the applicant’s prima
13 facie eligibility for asylum. See INS v. Abudu, 485 U.S. 94,
14 104–05 (1988); Poradisova v. Gonzales, 420 F.3d 70, 78 (2d
15 Cir. 2005) (concluding that the prima facie standard requires
16 an applicant to show a “‘realistic chance’ that he will be
17 able to establish eligibility” for asylum). Substantial
18 evidence supports the BIA’s determination that Li did not
19 establish a material change in country conditions or
20 demonstrate his prima facie eligibility for asylum.
21 Li submitted three exhibits to establish changed
22 conditions in China. The BIA reasonably concluded that these
3
1 exhibits evidenced improved conditions since Li’s removal
2 hearing, not a material worsening of conditions as required
3 to excuse the untimely filing. See 8 U.S.C. § 1229a(c)(7)(C);
4 In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In
5 determining whether evidence accompanying a motion to reopen
6 demonstrates a material change in country conditions that
7 would justify reopening, [the BIA] compare[s] the evidence of
8 country conditions submitted with the motion to those that
9 existed at the time of the merits hearing below.”).
10 Li’s argument that changed attitudes towards
11 homosexuality in the United States warrant reopening is
12 unavailing because he was required to show a change in
13 conditions in China. See 8 U.S.C. § 1229a(c)(7)(C)(ii)
14 (providing that there is no time limit to move for reopening
15 to apply for asylum “based on changed country conditions
16 arising in the country of nationality or the country to which
17 removal has been ordered” (emphasis added)); Shi Liang Lin v.
18 U.S. Dep’t of Justice, 494 F.3d 296, 314 (2d Cir. 2007)
19 (concluding that “a change in United States asylum law does
20 not qualify as a ‘change in circumstances’ sufficient to
21 reopen an asylum case”). Li also argues that reopening is
22 warranted based on changed personal circumstances, i.e., his
4
1 “permanent limbo” and deprivation of liberty as a result of
2 being under an order of supervision for 15 years because China
3 refuses to issue him a passport to effectuate his removal.
4 But Li did not submit any evidence that China refused to issue
5 him a passport, and his order of supervision states only that
6 the Government is unable to remove him “at this time.”
7 Certified Administrative Record (“CAR”) at 41. In any event,
8 a change in “personal circumstances in the United States”
9 generally does not excuse the filing deadline for motions to
10 reopen. Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d
11 129, 130–31 (2d Cir. 2005) (emphasis omitted). While Li
12 contends that a motion to reopen is the only available
13 mechanism to challenge his order of supervision, he may be
14 able to challenge that order by filing a habeas corpus
15 petition under 28 U.S.C. § 2241. See Demore v. Kim, 538 U.S.
16 510, 516–17 (2003) (concluding that noncitizens may challenge
17 immigration detention under § 2241); Jones v. Cunningham, 371
18 U.S. 236, 243 (1963) (holding that a petitioner remains in
19 custody for habeas purposes while on parole because “it
20 imposes conditions which significantly confine and restrain
21 his freedom”).
22 The BIA also reasonably concluded that Li did not
5
1 establish his prima facie eligibility for asylum. The basis
2 for his claim was that China will target him because it now
3 knows that he is gay. But Li did not offer any evidence to
4 support that assertion. See Jian Hui Shao, 546 F.3d at 157–
5 58 (“[W]hen a petitioner bears the burden of proof, his
6 failure to adduce evidence can itself constitute the
7 ‘substantial evidence’ necessary to support the agency’s
8 challenged decision.”); id. at 168 (explaining that movant
9 carries a “heavy burden” on reopening). Li’s reliance on
10 Indradjaja v. Holder to argue that he was not required to
11 submit an affidavit to support his claim is misplaced because
12 Indradjaja had other evidence to support her claim. 737 F.3d
13 212, 219 (2d Cir. 2013). And contrary to Li’s contention
14 that China’s knowledge of his homosexuality is irrelevant
15 because his sexuality is an immutable characteristic, such
16 knowledge is central to his claim that China will target him
17 for persecution as a gay man. Finally, to the extent that Li
18 contends the BIA erred in finding that sexual orientation is
19 not a particular social group, the BIA never made such a
20 finding; to the contrary, it specifically assumed Li’s
21 “membership in a [particular social group] consisting of
22 homosexuals.” CAR at 4.
6
1 For the foregoing reasons, the petition for review is
2 DENIED. All pending motions and applications are DENIED and
3 stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
7