Zhu Jiao Jiang v. Holder

10-4769-ag
Jiang v. Holder
BIA
A077 317 739
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of May, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 ZHU JIAO JIANG,
14 Petitioner,
15
16 v. 10-4769-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
24 New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Mark C. Walters, Senior
28 Litigation Counsel; Glen T. Jaeger,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Zhu Jiao Jiang, a native and citizen of the People’s
6 Republic of China, seeks review of an October 27, 2010,
7 decision of the BIA denying her motion to reopen. In re Zhu
8 Jiao Jiang, No. A077 317 739 (B.I.A. Oct. 27, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 We review the BIA’s denial of Jiang’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). When, as here, the BIA considers relevant
14 evidence of country conditions in evaluating a motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
18 An alien may file only one motion to reopen and must do
19 so within 90 days of the agency’s final administrative
20 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
21 Jiang’s motion was indisputably untimely and number-barred
22 because it was filed almost seven years after the agency’s
23 final order of deportation and it was her second motion to
2
1 reopen. See 8 U.S.C. § 1229a(c)(7)(A),(C)(i), there are no
2 time limitations for filing a motion to reopen if it is
3 “based on changed country conditions arising in the country
4 of nationality or the country to which removal has been
5 ordered, if such evidence is material and was not available
6 and would not have been discovered or presented at the
7 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
8 also 8 C.F.R. § 1003.2(c)(3)(ii).
9 The BIA did not abuse its discretion in finding that
10 Jiang’s newly commenced practice of Christianity constituted
11 a change in her personal circumstances, rather than a change
12 in country conditions sufficient to excuse the untimely
13 filing of her motion to reopen. See Li Yong Zheng v. U.S.
14 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
15 Moreover, the BIA reasonably concluded that the evidence
16 that Jiang submitted in support of her motion did not
17 demonstrate a material change in conditions excusing the
18 untimely and number-barred filing of her motion because the
19 evidence showed only that, since Jiang’s 2002 removal
20 proceedings, the Chinese government had continually
21 repressed the practice of Christianity in certain areas.
22 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
23 § 1003.2(c)(3)(ii).
3
1 Furthermore, although the Chinese government may have
2 intensified its repression of unregistered religious groups
3 in certain regions leading up to the 2008 Olympics, that
4 intensification was not material to Jiang, as she was from a
5 province not mentioned with respect to the intensification,
6 and she filed her motion more than one year after the
7 Olympics had concluded. See 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 see also Jian Hui Shao, 546 F.3d at 169. Accordingly, the
9 BIA did not abuse its discretion in denying Jiang’s motion
10 to reopen as untimely and number-barred. See 8 U.S.C. §
11 1229a(c)(7); see also 8 C.F.R. § 1003.2(c)(2).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, the pending motion
14 for a stay of removal in this petition is DISMISSED as moot.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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