Yan Qing Jiang v. Holder

12-5110 Jiang v. Holder BIA A078 861 601 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 4th day of March, two thousand fourteen. 5 6 PRESENT: 7 ROBERT A. KATZMANN, 8 Chief Judge, 9 DEBRA ANN LIVINGSTON, 10 RAYMOND J. LOHIER, JR., 11 Circuit Judges. 12 _____________________________________ 13 14 YAN QING JIANG, AKA SHINICHI TANAKA, 15 Petitioner, 16 17 v. 12-5110 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Cora J. Chang, New York, New York. 25 26 FOR RESPONDENT: Stuart Delery, Assistant Attorney 27 General; Ernesto H. Molina, Jr., 28 Assistant Director; Drew C. 29 Brinkman, 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 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 Petitioner Yan Qing Jiang, a native and citizen of 6 China, seeks review of a December 4, 2012, decision of the 7 BIA denying his motion to reopen. In re Yan Qing Jiang, No. 8 A078 861 601 (B.I.A. Dec. 4, 2012). We assume the parties’ 9 familiarity with the underlying facts and procedural history 10 of this case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion, mindful of the Supreme Court’s 13 admonition that such motions are “disfavored.” Ali v. 14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. 15 Doherty, 502 U.S. 314, 322-23 (1992)). We review the BIA’s 16 factual findings regarding country conditions under the 17 substantial evidence standard. See Jian Hui Shao v. 18 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 19 The BIA did not abuse its discretion in denying Jiang’s 20 motion to reopen as untimely as it was filed more than seven 21 years after his final order of removal. See 8 U.S.C. 22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although 2 1 there are no time limitations for filing a motion to reopen 2 if it is “based on changed country conditions arising in the 3 country of nationality or the country to which removal has 4 been ordered, if such evidence is material and was not 5 available and would not have been discovered or presented at 6 the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 7 also 8 C.F.R. § 1003.2(c)(3)(ii), Jiang has not established 8 any error in the BIA’s conclusion that there was no material 9 change. 10 First, Jiang’s conversion to Christianity is a change 11 in personal circumstances that does not excuse the time 12 limitation. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 13 F.3d 129, 130-31 (2d Cir. 2005); see also Wei Guang Wang v. 14 BIA, 437 F.3d 270, 274 (2d Cir. 2006). Moreover, there is 15 no basis for finding that the BIA ignored evidence of 16 country conditions, as the BIA explicitly discussed the 17 evidence and reasonably concluded that it did not establish 18 a change since the time of the hearing because the reports 19 showed a continuation of religious repression, not new 20 conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 21 F.3d 315, 336 n.17 (2d Cir. 2006) (presuming that the agency 22 “has taken into account all of the evidence before [it], 23 unless the record compellingly suggests otherwise”); In re 3 1 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)(“In determining 2 whether evidence accompanying a motion to reopen 3 demonstrates a material change in country conditions that 4 would justify reopening, [the BIA] compare[s] the evidence 5 of country conditions submitted with the motion to those 6 that existed at the time of the merits hearing below.”). 7 Because the BIA did not abuse its discretion in denying 8 Jiang’s motion to reopen as untimely, and timeliness is a 9 prerequisite to consideration of eligibility for the 10 requested relief, we need not reach Jiang’s arguments 11 regarding his prima facie eligibility for asylum. See 12 8 U.S.C. § 1229a(c)(7)(C). 13 For the foregoing reasons, the petition for review is 14 DENIED. As we have completed our review, any stay of 15 removal that the Court previously granted in this petition 16 is VACATED, and any pending motion for a stay of removal in 17 this petition is DISMISSED as moot. Any pending request for 18 oral argument in this petition is DENIED in accordance with 19 Federal Rule of Appellate Procedure 34(a)(2), and Second 20 Circuit Local Rule 34.1(b). 21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25 4