Tashi Gyamtso v. Atty Gen USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1760
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TASHI GYAMTSO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-586-979)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2011
Before: RENDELL, CHAGARES AND ALDISERT, Circuit Judges
(Opinion filed: August 1, 2011 )
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OPINION
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PER CURIAM
Gyamtso Tashi petitions for review of an order of the Board of Immigration
Appeals (“BIA” or “Board”) denying his motion to reopen. For the reasons that follow,
we will grant the petition for review and remand the case for further proceedings
consistent with this opinion.
I.
Gyamtso entered the United States in November 2003, presenting himself as
Ngawang Bhutia, an Indian citizen with a valid Indian passport and B-1 tourist visa. Less
than a year later, Gyamtso filed an application for asylum, claiming that his Indian
passport and tourist visa were obtained by fraud and that he was Tashi Gyamtso, a
Tibetan native and citizen of the People’s Republic of China seeking refuge in the United
States. He alleged that he fled to India from Tibet with his wife and three children
because he was persecuted for advocating freedom of religion and freedom from Chinese
rule.
In November 2004, the Department of Homeland Security (“DHS”) issued a
Notice to Appear, charging Gyamtso with being subject to removal under Immigration
and Nationality Act § 237(a)(1)(A), for arriving in the United States without an
immigrant visa or other valid travel documents. Gyamtso admitted the charges and
conceded removability. In December 2005, following an administrative hearing, the
Immigration Judge (“IJ”) denied Gyamtso’s applications for relief and ordered him
removed to India. The IJ made an adverse credibility ruling based on discrepancies
between Gyamtso’s hearing testimony and his supplementary I-589 statement. He also
determined that Gyamtso was an Indian citizen based on the authentic Indian passport,
and also because he failed to prove his identity as a Tibetan native and citizen of China.
The BIA adopted and affirmed the IJ’s decision and dismissed the appeal.
Gyamtso filed a timely petition for review of that determination, which we denied. See
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Gyamtso v. Att’y Gen., 296 F. App’x 235 (3d Cir. 2008). In doing so, we affirmed the
agency’s adverse credibility determination. We also concluded that substantial evidence
supported the agency’s finding that Gyamtso is a citizen of India, which was dispositive
of Gyamtso’s asylum claim.
In May 2010, Gyamtso, through counsel, filed with the BIA a motion to reopen
the proceedings. Gyamtso acknowledged that his motion was untimely, but argued the
existence of changed country conditions in Tibet since he was ordered removed, and also
the existence of previously unavailable, material evidence, demonstrating that he is native
of Tibet and citizen of China. (See Administrative Record (“A.R.”) at 17-18, 20-21.)
The evidence included: 1) an arrest warrant for Gyamtso dated August 7, 2001; 2) a
December 2005 letter from the Tibetan Welfare office stating that Gyamtso “is a
bonafide Tibetan resident;” 3) the affidavit of Gyamtso’s wife describing events
occurring in 2001; 4) a January 2010 letter from the Lithang Welfare Association of
Brooklyn, New York, asserting that Gyamtso “is a bonafide Tibetan;” 5) four statements
from individuals claiming that Gyamtso is a Tibetan; 6) Gyamtso’s affidavit; 7) the U.S.
Department of State’s 2008 Human Rights Report on China; and 8) two articles
describing current conditions in Tibet. (Id. at 44-148.)
The BIA denied the motion. The Board first stated that despite Gyamtso’s
continued protestation that he a Tibetan native and Chinese citizen, this Court previously
concluded that substantial evidence supported the agency’s determination that he is a
citizen of India. (Id. at 3-4.) The Board then determined that the evidence that Gyamtso
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presented concerning his claimed identity was either previously available, or could not be
authenticated. (Id.) Finally, the Board stated that Gyamtso’s purported evidence of
changed country conditions in Tibet, which included the 2008 Human Rights Report,
failed to demonstrate changed circumstances in China which would “materially affect”
Gyamtso’s eligibility for asylum or withholding of removal. (Id.) Gyamtso, proceeding
pro se, filed a timely petition for review.
II.
In order to succeed on a motion to reopen, an alien must, among other things,
establish a prima facie case for the relief sought. Guo v. Ashcroft, 386 F.3d 556, 562 (3d
Cir. 2004). We review the BIA’s denial of such a motion under an abuse of discretion
standard. Id. at 562. Under that standard, the BIA’s decision warrants reversal only if it
is arbitrary, irrational, or contrary to law. Id.Generally, a motion to reopen must be filed no later than ninety days after the date
on which the final administrative decision was rendered in the proceeding sought to be
reopened. See 8 C.F.R. § 1003.2(c)( 2). In addition, petitioners are typically barred from
filing more than one motion to reopen. Id. However, the time and numerical limitations
do not apply to motions to reopen to apply or reapply for asylum or withholding of
removal based on changed circumstances 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.
See 8 C.F.R. § 1003.2(c)(3)(ii).
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III.
As mentioned, Gyamtso admitted that his motion was untimely, but filed it
pursuant to § 1003.2(c)(3)(ii). However, the Board does not appear to have reviewed
Gyamtso’s motion pursuant to the requirements of that regulation.
Instead, for reasons which are unclear, the Board analyzed whether the evidence
that Gyamtso’s presented with his motion demonstrated changed conditions in China,
rather than in India, the country to which he was ordered removed. The Board also
reviewed whether Gyamtso’s purported new evidence regarding his claimed identity
provided a sufficient basis for reopening, determining that it did not because the evidence
was previously available or could not be authenticated. However, the question of
Gyamtso’s citizenship was settled previously and, in any event, that information does not
appear to speak to the requirements of § 1003.2(c)(3)(ii).
For those reasons, we will grant the petition for review and remand the case for
further proceedings consistent with this opinion. We express no opinion as to the
ultimate outcome of the case.
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