Pang v. Sessions

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 29, 2017
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Elisabeth A. Shumaker
Clerk of Court
ZHI WEI PANG, a/k/a Zhi Wei Pan,
Petitioner,
v. No. 17-9500
(Petition for Review)
JEFFERSON B. SESSIONS, III,
United States Attorney General,
Respondent.
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ORDER AND JUDGMENT*
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Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
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Zhi Wei Pang is a native and citizen of China. He seeks review of a final
order of removal issued by the Board of Immigration Appeals (BIA) that denied his
motion to reopen his removal proceedings. Exercising jurisdiction under 8 U.S.C.
§ 1252, we deny the petition.
Pang first entered the United States in 1993. Thereafter, he was involved in
protracted immigration proceedings that were eventually resolved in Denver,
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Colorado in 2008. The immigration judge (IJ) denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture.
As to asylum, the IJ found that Pang failed to establish past persecution on
account of a statutorily enumerated ground. In this regard, Pang argued that the fine
levied against him for violating China’s family planning policy and the confiscation
of some personal property when he could not pay, amounted to persecution. The IJ
acknowledged that in certain circumstances economic harm can be considered
persecution, but found that the fine and confiscation of property did not rise to such a
level. And with respect to withholding of removal, the IJ found that Pang failed to
demonstrate a well-founded fear of future persecution on account of a protected
ground. Last, the IJ found that Pang failed to establish that he more likely than not
would suffer torture by or with the acquiescence of the government upon his return to
China.
Pang appealed. In a 2010 decision, the BIA upheld the IJ’s decision and
dismissed Pang’s appeal. This court denied Pang’s petition for review.
In 2016, nearly six years after the BIA dismissed his appeal, Pang filed a
motion to reopen the proceedings. He did not submit a new asylum application or
indicate which form of relief he was pursuing other than to state in the motion that
the proceedings should be reopened “based on his continued economic persecution by
the Chinese . . . Government.” Admin. R. at 13.
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The BIA concluded that the motion was untimely and that Pang failed to
establish any changed conditions in China to excuse the untimely filing. The BIA
further concluded that Pang’s motion did not demonstrate an exceptional situation
that would warrant the exercise of discretion to reopen the proceedings sua sponte.
This petition for review followed.
“The decision to grant or deny a motion to reopen . . . is within the discretion
of the [BIA].” 8 C.F.R. § 1003.2(a). As such, “we review the BIA’s decision on a
motion to reopen only for an abuse of discretion. The BIA abuses its discretion when
its decision provides no rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary or conclusory
statements.” Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004) (brackets,
alteration, and internal quotation marks omitted). And because “the decision of the
BIA whether to invoke its sua sponte authority is committed to its unfettered
discretion,” any claim that the BIA failed to sua sponte reopen the proceedings is
“not subject to judicial review.” Belay-Gebru v. INS, 327 F.3d 998, 1000-01 (10th
Cir. 2003) (alteration and internal quotation marks omitted).
An alien may file one motion to reopen within ninety days of a final
administrative order of removal. See § 1003.2(c)(2). The motion must be supported
by affidavits or other evidentiary material, and must be based on evidence that is
material, that was not previously available, and that could not have been discovered
or presented at the former hearing. Id. at (c)(1). An exception to the time and
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number limitation exists for aliens who seek reopening to apply for asylum or
withholding of removal where the claim is based on changed country conditions
arising in the country of nationality or the country to which removal has been
ordered, if such evidence is material and was not available and would not have been
discovered or presented at the previous proceeding. Id. at (c)(1), (c)(3)(ii).
“To merit reopening [his] case, [Pang] must state the new facts that will be
proven at a hearing to be held if the motion is granted, and [he] must support those
facts with affidavits or other evidentiary material.” Maatougui v. Holder, 738 F.3d
1230, 1239-40 (10th Cir. 2013) (internal quotation marks omitted). The new facts
“must demonstrate that if proceedings before the IJ were reopened . . . the new
evidence offered would likely change the result in the case.” Id. at 1240 (brackets
and internal quotation marks omitted).
Although Pang did not specify the form of relief he was seeking, the BIA
construed his motion to reopen as a request for asylum and withholding of removal.
Therefore, the question before the BIA was whether Pang’s new evidence
demonstrated a material change in country conditions in China to establish a
prima facie case for relief in 2016 that did not exist at the time of his merits hearing
in 2008.
In his affidavit, Pang claimed that his wife disappeared several years ago, his
land was confiscated, and he was threatened by the Chinese government when he
challenged its taking of his land. But as the government points out, Pang failed to
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provide any evidence regarding the circumstances surrounding his wife’s alleged
disappearance, or that the confiscation of his property or alleged threats had any
connection to a statutorily protected ground. In fact, he appears to concede that his
property was seized “based on abandonment.” Pet’r Opening Br. at 8.
More to the point, Pang admits that his motion to reopen is based on an alleged
change in his personal circumstances—not changed country conditions: Pang
provided a notarized statement that “his circumstances had changed.” Id. at 5(emphasis added).
Unfortunately for Pang, a change in personal circumstances is not sufficient to
sustain a motion to reopen filed after the ninety-day deadline in 8 C.F.R.
§ 1003.2(c)(2). See 8 C.F.R. § 1003.2(c)(3)(ii) (“[T]he time limitation . . . shall not
apply to a motion to reopen proceedings . . . [t]o apply or reapply for asylum or
withholding of deportation based on changed circumstances arising in the country of
nationality . . . if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing”); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). Instead, to obtain relief on an untimely motion to reopen, an
alien must present, among other things, evidence of changed country conditions.
See Wei v. Mukasey, 545 F.3d 1248, 1256 (10th Cir. 2008) (An “alien [cannot] file
application for asylum [or withholding of removal] on the basis of changed personal
circumstances after he ha[s] been ordered removed and 90-day time limit for filing
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motion to reopen ha[s] expired, unless [the] alien [can] show changed country
conditions that would support [the] motion to reopen.”).
Last, Pang argues that the BIA should have reopened the proceedings to
consider whether he was entitled to protection under the Convention Against Torture.
But Pang did not raise this claim in his motion to reopen, and we therefore lack
jurisdiction to consider the issue. See Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th
Cir. 1999) (per curiam) (holding court lacks jurisdiction to consider an issue on
appeal not raised in alien’s motion to reopen).
The petition for review is denied.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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