Jiangdong Jiang v. Holder

12-2540
Jiang v. Holder
BIA
A096 234 732
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 8th day of November, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 RALPH K. WINTER,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIANGDONG JIANG, AKA JIAN DONG JIANG,
14 Petitioner,
15
16 v. 12-2540
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Ai Tong, New York, New York.
24
25 FOR RESPONDENT: Stuart Delery, Acting Assistant
26 Attorney General; Blair T. O’Connor,
27 Assistant Director; Don G. Scroggin,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
 1
2 UPON DUE CONSIDERATION of this petition for review of a

3 decision of the Board of Immigration Appeals (“BIA”), it is

4 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

5 review is DENIED.

6 Jiangdong Jiang, a native and citizen of the People’s

7 Republic of China, seeks review of a May 31, 2012 decision

8 of the BIA denying his second motion to reopen, filed in

9 2011. In re Jiangdong Jiang, No. A096 234 732 (B.I.A. May

10 31, 2012). We assume the parties’ familiarity with the

11 underlying facts and procedural history of this case. We

12 review the BIA’s denial of a motion to reopen for abuse of

13 discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

14 2005) (per curiam). We find no abuse of discretion in this

15 case.

16 There is no dispute that Jiang’s 2011 motion to reopen

17 was untimely and number-barred because his administrative

18 removal order became final in 2004, and in 2008, he filed a

19 first motion to reopen, which was denied. See 8 U.S.C.

20 § 1229a(c)(7); 8 C.F.R. § 1003.2(c). To the extent Jiang

21 contends that the time limitation does not apply because his

22 motion is based on changed circumstances arising in China, 8

2
 1 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii),

2 his arguments are unpersuasive.

3 Initially, we note that the BIA did not abuse its

4 discretion in basing its decision on Jiang’s failure to file

5 an asylum application to support his new religion-based

6 asylum claim. See 8 C.F.R. § 1003.2(c)(1) (providing that a

7 motion to reopen “must be accompanied by the appropriate

8 application for relief” (emphasis added)); see also Joaquin-

9 Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir. 2006) (An

10 agency’s interpretations of its own regulations are accorded

11 “substantial deference”).

12 Furthermore, the basis of Jiang’s second motion to

13 reopen – his conversion to Christianity in the United States

14 – is a change in personal circumstances arising in the

15 United States, not a change of conditions arising in China.

16 See 8 U.S.C. § 1229a(c)(7)(C)(i)-(ii) (providing that the

17 90-day time limitation limits eligibility for relief unless

18 the motion is based on a change in the country to which

19 removal has been ordered); see also Yuen Jin v. Mukasey, 538

20 F.3d 143, 155 (2d Cir. 2008); Wei Guang Wang v. BIA, 437

21 F.3d 270, 273-74 (2d Cir. 2006).

3
 1 Substantial evidence supports the BIA’s conclusion that

2 Jiang’s documentation failed to demonstrate changed

3 conditions in China. See Jian Hui Shao v. Mukasey, 546 F.3d

4 138, 169 (2d Cir. 2008) (reviewing BIA’s factual findings

5 regarding changed country conditions under the substantial

6 evidence standard). None of the evidence Jiang submitted

7 with his motion – his own affidavit, his birth certificate,

8 his baptism certificate, a letter confirming his attendance

9 in a church in the United States, and a photograph of him

10 allegedly with a church member - contains evidence

11 supporting his contention that the Chinese government

12 persecutes Christians or that Jiang would specifically be

13 persecuted if he returned to China.

14 Finally, we lack jurisdiction to review the BIA’s

15 “entirely discretionary” determination not to reopen Jiang’s

16 proceedings under its sua sponte authority. Ali v.

17 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam).

18

19

20

21

4
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, the pending motion

3 for a stay of removal in this petition is DISMISSED as moot.

4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6

5