10-664-ag (L)
Jiang v. Holder
BIA
A075 841 712
A079 456 516
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 7th day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 SHAOBIN JIANG,ZHEN JIE WENG,
14 Petitioners,
15
16 v. 10-664-ag (L);
17 10-665-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONERS: Gang Zhou, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Paul Fiorino, Senior
28 Litigation Counsel; Katherine A.
29 Smith, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioners Shaobin Jiang and Zhen Jie Weng, wife and
6 husband and natives and citizens of China, seek review of
7 two January 29, 2010, orders of the BIA denying their joint
8 motion to reopen. In re Shaobin Jiang, No. A079 456 516
9 (B.I.A. Jan. 29, 2010); In re Zhen Jie Weng, No. A075 841
10 712 (B.I.A. Jan. 29, 2010). We assume the parties’
11 familiarity with the underlying facts and procedural history
12 in this case.
13 We review the BIA’s denial of a motion to reopen for
14 abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
15 Cir. 2005) (per curiam). An alien may file only one motion
16 to reopen and must do so within 90 days of the final
17 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
18 § 1003.2(c)(2).
19 Here, petitioners’ motion to reopen was indisputably
20 time-barred as it was filed eight years after the BIA’s
21 dismissal of Weng’s appeal of his removal order and nearly
22 four years after its dismissal of Jiang’s appeal.
23 See 8 C.F.R. § 1003.2(c)(2). However, there are no time or
2
1 numerical limitations if the alien establishes materially
2 “changed country conditions arising in the country of
3 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
4 8 C.F.R. § 1003.2(c)(3)(ii). Petitioners contend that the
5 BIA abused its discretion in denying their motion as
6 untimely because they established changed country
7 conditions. We find no abuse of discretion.
8 As an initial matter, the BIA did not abuse its
9 discretion in discounting the probative value of government
10 documents the petitioners submitted from China, as those
11 documents were not authenticated pursuant to 8 C.F.R.
12 § 287.6. See Qin Wen Zheng v. Gonzales, 500 F.3d 143 (2d
13 Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
14 315, 342 (2d Cir. 2006). Moreover, the BIA could have
15 reasonably declined to credit this unauthenticated evidence
16 based on the IJ’s underlying determination that Jiang was
17 not credible.
18 Further, the BIA did not abuse its discretion in
19 finding that the petitioners did not establish a material
20 change in country conditions establishing that Weng would
21 face persecution in China as a Chinese Democracy Party
22 (“CDP”) activist. The BIA did not err in discounting the
23 probative value of Weng’s relatives’ claims that he was the
3
1 subject of an investigation in China, because the weight
2 afforded to the applicant’s evidence lies largely within the
3 discretion of the agency. Xiao Ji Chen, 471 F.3d at 342.
4 Neither did the BIA abuse its discretion in finding that the
5 petitioners’ general evidence, establishing that CDP
6 activists were increasingly persecuted in China, did not
7 establish changes in China material to his application for
8 asylum. Because that evidence did not demonstrate that CDP
9 activists returning from the United States were mistreated
10 it did not establish that Weng himself would face
11 persecution for his actions in America. See Jian Hui Shao
12 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
13 Additionally, petitioners’ claim that they established
14 a material change in China’s family planning policy is
15 foreclosed by this Court’s decision in Jian Hui Shao because
16 they did not establish that persons similarly situated to
17 them were subjected to forcible sterilization in Fujian
18 province. 546 F.3d at 160-61. The BIA did not err by
19 summarily considering petitioners’ evidence that it had
20 previously considered in Matter of S-Y-G-, 24 I. & N. Dec.
21 247 (BIA 2007). While petitioners argue that the BIA erred
22 in summarily considering their Response to Information
4
1 Requests from the Immigration and Refugee Board of Canada
2 because it had not been considered by the BIA in Matter of
3 S-Y-G-, any error in summarily considering the document was
4 harmless because the document did not establish that persons
5 similarly situated to the petitioners - individuals
6 returning from the United States - were forcibly sterilized
7 in Fujian province. See Jian Hui Shao, 546 F.3d at 160-61;
8 Xiao Ji Chen, 471 F.3d at 338.
9 Finally, the BIA did not abuse its discretion, as
10 petitioners’ claims were insufficient to excuse the untimely
11 filing of their motion to reopen because they demonstrated
12 only changes in their personal circumstances. See Yuen Jin
13 v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).
14 As the BIA reasonably noted, petitioners’ decision to
15 have two children and Jiang’s involvement with the CDP were
16 self-induced. Therefore, the changes in their lives which
17 they alleged made them vulnerable to future persecution
18 constituted only a change in personal circumstances which
19 did not exempt their motion from the applicable bars. See
20 Wei Guang Wang, 437 F.3d at 272, 274 (making clear that the
21 time and numerical limitations on motions to reopen may not
22 be suspended because of a “self-induced change in personal
5
1 circumstances” that is “entirely of [the applicant’s] own
2 making after being ordered to leave the United States”).
3 Accordingly, the BIA did not abuse its discretion in
4 dismissing as untimely the petitioners’ motion to reopen
5 because they did not establish material changed country
6 conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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