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
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