Simonchyk v. Sessions

12-996
Simonchyk v. Sessions
BIA
A079 326 070
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
24th day of February, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
JOHN M. WALKER, JR.,
REENA RAGGI,
Circuit Judges.
_____________________________________
MARYIA VLADIMIROVNA SIMONCHYK,
Petitioner,
v. 12-996
NAC
Jeff Sessions, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Alexander J. Segal, Grinberg &
Segal, P.L.L.C., New York, New York.
*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeff
Sessions is substituted for Eric H. Holder, Jr. as Respondent.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Leslie McKay,
Assistant Director; Margot L.
Carter, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
GRANTED in part and DENIED in part.
Petitioner Maryia Vladimirovna Simonchyk, a native and
citizen of Belarus, seeks review of a February 17, 2012 decision
of the BIA denying her motion to reopen. See In re Maryia
Vladimirovna Simonchyk, No. A079 326 070 (B.I.A. Feb. 17, 2012).
We assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review the denial of a motion to reopen for abuse of
discretion, but review any findings regarding country
conditions for substantial evidence. Jian Hui Shao v. Mukasey,
546 F.3d 138, 168-69 (2d Cir. 2008). An alien seeking to reopen
proceedings may file only one motion to reopen no later than
90 days after the date on which the final administrative
decision was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
2
8 C.F.R. § 1003.2(c)(2). There is no dispute that Simonchyk’s
2011 motion was untimely and number-barred because it was her
second motion and was filed nearly 7 years after the BIA’s 2004
decision. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
§ 1003.2(c)(2). However, the filing restrictions may be
excused if the motion “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.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA’s determination that Simonchyk failed to establish
a material change in conditions in Belarus for political
dissidents generally is supported by substantial evidence.
“In determining whether evidence accompanying a motion to
reopen demonstrates a material change in country conditions
that would justify reopening, [the BIA] compare[s] the evidence
of country conditions submitted with the motion to those that
existed at the time of the merits hearing below.” Matter of
S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). While
Simonchyk’s evidence documents political unrest and abuses of
3
dissidents in the aftermath of the 2010 Belarusian presidential
election, the BIA reasonably determined that the evidence at
the time of her 2003 merits hearing detailed similar political
unrest, claims of election fraud against President Lukashenko,
and violence against political dissidents. See Xiao Ji Chen
v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
(holding that the weight accorded to evidence lies largely
within the discretion of the agency). Thus, the BIA did not
abuse its discretion in concluding that Simonchyk failed to
establish materially changed country conditions, based on the
evidence concerning the 2010 Belarusian presidential election,
for political dissidents in general. See Jian Hui Shao, 546
F.3d at 169.
The BIA, however, also rejected Simonchyk’s
changed-circumstances claim to the extent she presented
evidence that the Belarusian government would persecute her
personally based on her imputed political opinion, believing
her to be a U.S.-affiliated political dissident. “We have not
addressed in a precedential decision th[at] issue . . . i.e.,
whether a change that pertains to a particular individual in
his home country, as opposed to a general change in policy, is
4
sufficient to establish the changed country conditions
necessary to excuse the 90–day time limitation on motions to
reopen.” Chang Fan Zeng v. Holder, 487 F. App’x 643, 644-65
(2d Cir. 2012) (summary order) (internal quotation marks
omitted); accord Shin Guo Chen v. Holder, 482 F. App’x 659, 660
(2d Cir. 2012) (summary order); Chunhua Jiang v. Lynch, 621 F.
App’x 24, 25 (2d Cir. 2015) (summary order); Liang Shui Zhang
v. Lynch, 645 F. App’x 10, 12 n.2 (2d Cir. 2016) (summary order).
We therefore GRANT in part the petition for review and remand
to the BIA for its assessment of the reliability of the
petitioner’s individualized evidence or for its explanation,
in a published decision, whether its construction of “changed
country conditions” differs from that stated by the Seventh and
Eleventh Circuits. See Zhang v. U.S. Att'y Gen., 572 F.3d 1316,
1320 (11th Cir. 2009); Joseph v. Holder, 579 F.3d 827, 834 (7th
Cir. 2009).
For the foregoing reasons, the petition for review is
GRANTED in part and DENIED in part, and the case is remanded
to the BIA for further proceedings consistent with this order.
Any stay of removal that the Court previously granted in this
5
petition is VACATED, and any pending motion for a stay of removal
in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
6