13-340
Jiang v. Lynch
BIA
A096 401 221
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 15th day of January, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 YONG HUA JIANG, A.K.A. ANTHONY JOHN DU,
14 A.K.A. YONGHUA JIANG,
15 Petitioner,
16
17 v. 13-340
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONER: Ai Tong, Law Office of Ai Tong, P.C.
25 New York, N.Y.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
1
Loretta E. Lynch is automatically substituted as
the respondent in this case pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
1 General; Blair T. O’Connor,
2 Assistant Director; Rosanne M.
3 Perry, Trial Attorney, Civil
4 Division, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Yong Hua Jiang, a native and citizen of
13 China, seeks review of a January 17, 2013 decision of the
14 BIA denying his motion to reopen. In re Yong Hua Jiang,
15 a.k.a. Anthony John Du, a.k.a. Yonghua Jiang, No. A096 401
16 221 (BIA Jan. 17, 2013). We assume the parties’ familiarity
17 with the underlying facts and procedural history in this
18 case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion, mindful that such motions are
21 “disfavored,” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
22 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)),
23 and the agency’s factual findings regarding country
24 conditions under the substantial evidence standard, Jian Hui
25 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
26 Aliens seeking to reopen proceedings may move to reopen
2
1 no later than 90 days after the final administrative
2 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8
3 § C.F.R. 1003.2(c)(2). However, this time limitation does
4 not apply if the motion is “based on changed country
5 conditions arising in the country of nationality or the
6 country to which removal has been ordered, if such evidence
7 is material and was not available and would not have been
8 discovered or presented at the previous proceedings.” 8
9 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
10 It is undisputed that Jiang’s motion to reopen was
11 untimely: he filed it nearly five years after the agency
12 entered an order of removal against him. The BIA determined
13 that he failed to carry his heavy burden of demonstrating
14 material changed country conditions that would excuse his
15 delay. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 251, 258
16 (BIA 2007); 8 U.S.C. § 1229a(c)(7)(C)(ii). The BIA
17 “compare[d] the evidence of country conditions submitted
18 with the motion to those that existed at the time of the
19 merits hearing below.” Matter of S-Y-G-, 24 I. & N. Dec. at
20 253. Jiang did not submit 2005 reports on Chinese country
21 conditions. Thus, the BIA compared 2010 country reports to
22 the materials already in the record and found that China’s
3
1 mistreatment of political dissidents is ongoing. This
2 conclusion was sound, for “[c]hange that is incremental or
3 incidental does not meet the regulatory requirements for
4 late motions” to reopen. Matter of S-Y-G-, 24 I. & N. Dec.
5 at 257.
6 The agency had the discretion to discredit the letters
7 Jiang submitted, which came from his father and two
8 dissidents in China. None of the letters was notarized.
9 And while the agency errs in rejecting documents solely
10 because they were not authenticated pursuant to 8 C.F.R.
11 § 1287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
12 391, 404-05 (2d Cir. 2005), the BIA here provided additional
13 reasons for giving them limited weight, Xiao Ji Chen v. U.S.
14 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). Jiang’s
15 father was an interested witness not subject to
16 cross-examination, who wrote his letter to the IJ for the
17 purpose of litigation. Matter of H-L-H- & Z-Y-Z-, 25 I. &
18 N. Dec. 209, 215 (BIA 2010), rev’d on other grounds sub nom.
19 Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). The
20 dissidents’ letters were specious. They purportedly lived
21 in different parts of China, but wrote remarkably similar
22 letters thanking Jiang for contributing one hundred dollars
23 to their political cause. Both dissidents warned Jiang of
4
1 Chinese government surveillance of their communications; yet
2 despite that warning, they sent Jiang thank-you notes with
3 which they enclosed their residential identification cards.
4 The agency was also within its discretion to deem
5 Jiang’s “posting of internet articles” about his political
6 activities to be “[a] self-induced change in personal
7 circumstances,” which “cannot suffice” to excuse an untimely
8 motion to reopen. Wei Guang Wang v. BIA, 437 F.3d 270, 274
9 (2d Cir. 2006). Moreover, the articles’ existence proved
10 nothing about the Chinese government’s awareness of them.
11 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
12 2008).
13 Finally, Jiang is not eligible to file a successive
14 asylum petition. “[A] properly filed motion to reopen is a
15 prerequisite to the filing of a new asylum petition when the
16 petitioner is under a final removal order.” Yuen Jin v.
17 Mukasey, 538 F.3d 143, 152 (2d Cir. 2008). Jiang has been
18 under a final removal order since 2005 and, for the reasons
19 set forth above, failed to satisfy the prerequisite of a
20 properly filed motion to reopen.
21 The Court need not decide whether Jiang is prima facie
22 eligible for asylum (an issue he does not raise) because the
23 lack of changed country conditions is dispositive of the
5
1 motion.
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, the motion for
4 stay of removal is DISMISSED as moot.
5 FOR THE COURT:
6
7 Catherine O’Hagan Wolfe, Clerk
8
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6