Dianmou Jiang v. Holder

12-3912
Jiang v. Holder
BIA
A078 952 404
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 29th day of August, two thousand fourteen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
DIANMOU JIANG,
Petitioner,
v. 12-3912
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; William C. Peachey,
Assistant Director; Samuel P. Go,
Senior Litigation Counsel, Civil
Division, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Dianmou Jiang, a native and citizen of the People’s
Republic of China, seeks review of a September 10, 2012
order of the BIA denying his motion to reopen proceedings.
See Dianmou Jiang, No. A078 952 404 (B.I.A. Sept. 10, 2012).
We assume the parties’ familiarity with the underlying facts
and procedural history of this case.
First, we lack jurisdiction over any challenge to the
agency’s 2004 determination that Jiang’s original asylum
application was frivolous, as Jiang did not file a petition
for review of that order. See 8 U.S.C. § 1252(b)(1).
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien seeking to reopen proceedings is
required to file a motion to reopen no later than 90 days
after the date of the final administrative decision, unless
that motion seeks to apply for asylum and is based on a
material change in conditions in the country of removal.
See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2), (3).
There is no dispute that Jiang’s motion, filed in 2012, was
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untimely because the BIA issued a final order of removal in
2004.
To the extent Jiang argues that political activities
excuse the untimeliness, his activities amount to a change
in his personal circumstances, not a change in conditions in
China as needed to excuse the 90-day limit. See Wei Guang
Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006) (making
clear that limitations on motions to reopen may not be
suspended because of “self-induced change in personal
circumstances” that is “entirely of [applicant’s] own making
after being ordered to leave the United States”).
Moreover, Jiang did not establish that the treatment of
political activists in China had changed since his original
proceedings. The BIA did not err in discounting a letter
from Jiang’s wife, or a summons purportedly from the
authorities, because the documents were not accompanied by
certificates of translation. See 8 C.F.R. § 1003.33.
Jiang argues that he established changed conditions via
a comparison of: (1) a State Department report submitted in
support of his 2003 application, which stated that political
activists were not arrested upon re-entry into China; and
(2) his wife’s letter, which stated that authorities in
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China would arrest him if he did not cease his political
activities. However, Jiang failed to reference the country
report before the agency, and we do not address unexhausted
arguments. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
104, 119-22 (2d Cir. 2007). Further, the country report did
not address current conditions. Jiang’s remaining evidence
was entitled to little weight, because it either lacked the
requisite authentication or notarization, or related only to
his activities in the United States, not conditions in
China. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 342 (2d Cir. 2006)(“[T]he weight to afford to [an
asylum applicant’s] evidence lies largely within the
discretion of the IJ” (internal quotation marks and
alterations omitted)); Matter of H-L-H- & Z-Y-Z-, 25 I. & N.
Dec. 209, 214 & n.5 (BIA 2010) (rejecting unauthenticated
document obtained for purposes of hearing), overruled in
part on other grounds by Hui Lin Huang v. Holder, 677 F.3d
130 (2d Cir. 2012). Accordingly, nothing in the record
compels the conclusion that there has been a material change
in conditions in China. See 8 U.S.C. § 1252(b)(4)(B)
(providing that BIA’s factual findings are “conclusive
unless any reasonable adjudicator would be compelled to
conclude to the contrary”); Jian Hui Shao v. Mukasey, 546
4
F.3d 138, 169 (2d Cir. 2008) (reviewing agency’s factual
findings regarding country conditions under substantial
evidence standard).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending
unopposed motion for a stay of removal in this petition is
DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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