Yuexian Li v. Holder

09-1603-ag
Li v. Holder
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 12th
day of January, two thousand ten.
Present:
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
ROBERT A. KATZMANN,
Circuit Judges.
________________________________________________
YUEXIAN LI,
Petitioner,
v. No. 09-1603-ag
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
________________________________________________
For Petitioner: KEVIN LONG , Monterey Park, CA
For Respondent: LANCE L. JOLLEY , Trial Attorney (Tony West, Assistant Attorney
General, David V. Bernal, Assistant Director, on the brief), Office
of Immigration Litigation, Civil Division, 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, the March 31, 2009 order of the BIA is VACATED, and the
case is REMANDED for further consideration.
Petitioner Yuexian Li seeks review of an order of the BIA, In re Yuexian Li, No. A 073
539 918 (B.I.A. Mar. 31, 2009), denying her September 11, 2008 motion to reopen removal
proceedings that had concluded nearly ten years earlier. We assume the parties’ familiarity with
the underlying facts and procedural history of the case.
The 90-day time limit for filing a motion to reopen does not apply when a petitioner is
requesting asylum 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.” 8 C.F.R. § 1003.2(c)(3)(ii). This Court has consistently held that a
self-induced change in personal circumstances is not sufficient to excuse an untimely motion.
See, e.g., Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006).
We review the BIA’s denial of a motion to reopen for abuse of discretion. Jie Chen v.
Gonzales, 436 F.3d 76, 77 (2d Cir. 2006) (per curiam). An abuse of discretion will be found
when the BIA’s decision “(1) provides no rational explanation, (2) inexplicably departs from
established policies, (3) is devoid of any reasoning, or (4) contains only summary or conclusory
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statements.” Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 45 (2d Cir. 2005) (internal
quotation marks omitted). When a petitioner proffers evidence of worsened country conditions,
“the BIA has a duty to consider [such evidence] and issue a reasoned decision based thereon.”
Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). Though the BIA need not “expressly
parse or refute on the record each individual argument or piece of evidence offered by the
petitioner,” in order to review the BIA decision this Court must be able “to discern [the BIA’s]
reasons for declining to afford relief to a petitioner.” Wang, 437 F.3d at 275 (internal quotation
marks omitted).
The BIA’s order in the present case leaves us uncertain as to the precise grounds for its
determination that Petitioner’s evidence “does not show a material change of circumstances in
China.” The written decision appears to evaluate only the evidence Petitioner submitted in
support of her contention that the police in China are aware that she recently joined The Shouters
sect which, as the BIA correctly noted, constitutes a change in “personal circumstances”
insufficient to justify an untimely motion to reopen. See Wang, 437 F.3d at 274. The decision
offers no indication, however, that the BIA considered the evidence Petitioner proffered in her
supplemental submission of November 17, 2008 indicting that the Chinese Government had
recently cracked down on unofficial or “house” churches in China. In addition, though it is clear
that the BIA was aware of the 2008 U.S. State Department report on religious freedom in China
that Petitioner submitted on October 13, 2008, the BIA cited the report only to refute Petitioner’s
claim that she did not know the history and status of The Shouters in China before she joined.
Given that the BIA’s order appears only to address arguments and evidence regarding Petitioner’s
personal circumstances, we are unable to discern whether the BIA in fact concluded that she failed
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to provide sufficient material evidence of a change in circumstances for “house church” Christians
in China. In order to give the BIA the opportunity to more fully explain its reasoning, we hereby
GRANT the petition for review, VACATE the March 31, 2009 order denying Petitioner’s motion
to reopen, and REMAND to the BIA for further consideration. The pending motion for a stay of
removal in this petition is DISMISSED as moot.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:_________________________________
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