Wang v. Lynch , 795 F.3d 283 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1845
REI FENG WANG,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Lynch, Circuit Judges.
Michael Brown and Law Offices of Michael Brown, P.C., on brief
for petitioner.
Ilissa M. Gould, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Joyce R. Branda, Acting Assistant Attorney General, Civil
Division, and Leslie McKay, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
July 31, 2015
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
LYNCH, Circuit Judge. Rei Feng Wang, a native and
citizen of China, petitions for review of an order of the Board of
Immigration Appeals (BIA) denying as untimely, by approximately
fifteen years, his motion to reopen his earlier removal proceedings
on the purported basis of changed country circumstances. We
exercise jurisdiction and deny Wang's petition for review. The
BIA did not abuse its discretion in denying Wang's motion. We
also decline to take a position on a potential circuit split on
"mixed petitions."
I.
On October 2, 1996, Wang was interdicted in
international waters near Bermuda. He was arrested by immigration
officers and then detained. Wang was served with a Notice to
Appear in 1997 and was placed in removal proceedings. He conceded
he was removable from the United States for being an alien not in
possession of valid documentation, see 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Wang sought asylum on the basis that his
life was in danger because, he claimed, he had testified against
the organized crime group that tried to smuggle him into the United
States. He also claimed he faced persecution based on China's
birth control policy because he and his wife had refused to undergo
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forced sterilization.1 On February 2, 1998, an Immigration Judge
denied, in part based on adverse credibility findings, Wang's
applications for asylum and withholding of removal. Wang's appeal
with the BIA was dismissed on February 5, 1999. Wang, however,
was not removed and remained in the United States.
In his 2014 motion to reopen his asylum and withholding
of removal proceedings, Wang argued that his admittedly late motion
should not be barred by the ninety-day limit, see 8 U.S.C
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2), because "he provides
evidence demonstrating changed country conditions in China, his
country of nationality."2 Wang claimed that he has been a
practicing Christian since being baptized in 2012 and that he would
face persecution if he returned to China. He also maintained that
local government cadres had shown his father a video in which Wang
made critical statements about the Chinese government and its
policies. Wang alleged that the cadres had told his father that
Wang must return to China and face punishment. As purported
1 On the questionnaire Wang completed on October 11, 1996,
he stated that he left China because his "family has no work, no
livelihood," and he "was going to go to Canada as a refugee."
2 Wang also challenged the Immigration Judge's adverse
credibility finding in his original asylum claim. The BIA found
these arguments should have been raised on appeal or potentially
a timely motion to reopen. See Martinez-Lopez v. Holder, 704 F.3d
169, 172 (1st Cir. 2013); 8 C.F.R. § 1003.2(c)(1). Because we
find that Wang failed to establish the changed country
circumstances necessary to reopen his proceedings, we do not reach
the validity of these rulings.
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evidence of this, Wang provided an unauthenticated letter
allegedly from his father and a purported notice from the village
committee in China addressed to Wang's father. Finally, Wang
contended that the Chinese government's suppression of underground
churches had intensified since 1998.
The BIA denied Wang's motion to reopen on July 15, 2014,
because it did not meet the exception to the time bar for relief
based on changed circumstances in the country of nationality. See
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R § 1003.2(c)(3)(ii). The
BIA found Wang's becoming a practicing Christian constituted a
change in personal circumstances, not a change in country
conditions. The BIA gave little weight to the unauthenticated
letter purportedly from Wang's father, for several reasons,
including that it was written by an interested party to support
the reopening of Wang's final removal order and thus did not
support a finding of materially changed circumstances. The BIA
also found that the 2012 State Department report Wang submitted
did not demonstrate a material worsening of conditions for
Christians in China since his asylum hearing. Wang's petition for
review followed.
II.
We review the BIA's denial of a motion to reopen for
abuse of discretion. Aponte v. Holder, 610 F.3d 1, 4 (1st Cir.
2010). We "disfavor motions to reopen removal proceedings because
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they run the risk of frustrating 'the compelling public interests
in finality and the expeditious processing of proceedings.'" Hang
Chen v. Holder, 675 F.3d 100, 105 (1st Cir. 2012) (quoting
Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir. 2007)).
A motion to reopen must be filed within ninety days of
the final administrative decision. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Section 1229a
provides an exception to this time limit for asylum applications
if "the filing of a motion to reopen . . . is based on changed
country conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence is
material and was not available and would not have been discovered
or presented at the previous proceeding." 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii)
(applying the same standard to withholding of removal
proceedings). Because Wang failed to demonstrate changed
conditions in China, he does not meet this exception, and his
motion is time-barred.
Wang presents a "mixed petition," that is both that his
personal circumstances have changed and that country conditions
have done so. See Li Zhang v. Att'y Gen. of U.S., 543 F. App'x
277, 285 (3d Cir. 2013) (defining a "mixed petition" as one
"presenting changes in both personal and country conditions"). He
claims that he converted to Christianity and was baptized in 2012
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and that conditions in China have worsened since his 1998
hearings.3 A change in personal circumstances alone does not meet
the standard for the exception to the time bar for changed country
conditions. See, e.g., Ming Chen v. Holder, 722 F.3d 63, 66-67
(1st Cir. 2013); Yang Zhao-Cheng v. Holder, 721 F.3d 25, 27 n.4
(1st Cir. 2013); accord Xiu Zhen Zheng v. Holder, 548 F. App'x
869, 870 (4th Cir. 2013); Yu Yun Zhang v. Holder, 702 F.3d 878,
879-80 (6th Cir. 2012); Khan v. Att'y Gen. of U.S., 691 F.3d 488,
497-98 (3d Cir. 2012); Almaraz v. Holder, 608 F.3d 638, 640 (9th
Cir. 2010); Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th
Cir. 2009) (per curiam); Qi Hua Li v. Holder, 354 F. App'x 46, 48
(5th Cir. 2009) (per curiam); Wei v. Mukasey, 545 F.3d 1248, 1255-
56 (10th Cir. 2008); Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d
Cir. 2008); Zhong Qin Zheng v. Mukasey, 523 F.3d 893, 895 (8th
Cir. 2008); Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir.
2007).
In Li Zhang, the Third Circuit diverged from the Seventh
Circuit's decision in Shu Han Liu v. Holder, 718 F.3d 706 (7th
Cir. 2013), and explained that unlike the Seventh Circuit -- which
will consider changes in personal circumstances when combined with
changes in country conditions -- the Third Circuit's "case law
3 In his brief, Wang writes, "Moreover, the 2012 country
report . . . indicates the Chinese government is currently
employing different methods to restrict people's freedom of
religion and persecute the Christians."
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makes clear that even mixed petitions . . . ordinarily . . . should
be rejected." Li Zhang, 543 F. App'x at 285 (citing Khan, 691
F.3d at 497-98). In Li Zhang, although the Third Circuit did "not
conclude that a mixed petition always must be rejected, [it]
conclude[d] that the BIA would not have abused its discretion in
rejecting the motion . . . as being based on a mixed petition
because the claimed change in country conditions, standing alone,
could not justify granting the motion." Id.; see also Ying Chen
v. Holder, 368 F. App'x 202, 204 (2d Cir. 2010) ("[C]hanging one's
personal circumstances in a way that coincides with changes in
one's country -- years after being ordered removed -- does not
meet the changed country conditions exception . . . .").4 But see
Chandra v. Holder, 751 F.3d 1034, 1037-39 (9th Cir. 2014)
(collecting cases from the Sixth, Seventh, and Eleventh Circuits,
and holding the BIA must consider untimely motions "even if the
changed country conditions are made relevant by a change in the
petitioner's personal circumstances," id. at 1038). Because the
BIA considered Wang's argument that conditions in China worsened
in connection with his changed personal circumstances, we need not
4 In other cases, panels from the Second and Third Circuits
have appeared to suggest they will consider claims where the
petitioner alleges personal and country conditions have both
changed. See, e.g., Fang Zheng v. Att'y Gen. of U.S., 569 F. App'x
136, 137 n.1 (3d Cir. 2014); Yuen Jin, 538 F.3d at 155.
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take a position on this and do not decide whether rejecting a
petition because it is mixed would be an abuse of discretion.
Wang's conversion to Christianity was clearly only a
change in personal circumstances. See Ming Chen, 722 F.3d at 66
("'Under the current case law, a change typically will be
categorized as a change in personal circumstances, as opposed to
a change in country conditions, if the change is self-
induced.' . . . This prevents aliens from repeatedly reopening
their removal proceedings based on changes that are within their
control." (quoting Larngar v. Holder, 562 F.3d 71, 76 (1st Cir.
2009))). We treat self-induced changes as changes in personal
conditions, "even if the change in personal circumstances will
expose the alien to persecution in his home country." Id.
Wang failed to demonstrate that conditions worsened for
Christians in China. He submitted a 2012 State Department report
on religious freedom and human rights in China. This report,
however, does not illustrate a change in China's conditions since
the time of his hearings. Indeed, in his brief, Wang describes
the report as "provid[ing] a general background and solid support
to [his] claim that the Chinese government is currently persecuting
the Christians." (Emphasis added.) See Haizem Liu v. Holder, 727
F.3d 53, 57 (1st Cir. 2013) ("In determining if evidence submitted
in support of a motion to reopen demonstrates a material change in
country conditions justifying reopening of proceedings, the BIA
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'compare[s] the evidence of country conditions submitted with the
motion to those that existed at the time of the merits hearing
below.'" (alteration in original) (quoting In re S-Y-G, 24 I. & N.
Dec. 247, 253 (BIA 2007))).5
The BIA did not abuse its discretion in finding that
Wang's motion to reopen removal proceedings is time-barred.6
III.
For the reasons stated above, Wang's petition for review
is denied.
5 To the extent Wang argues the letter from his father and
the village notice show changed country circumstances, this
argument also fails. Even assuming these documents held
evidentiary weight, they demonstrate only "that any risk that
[Wang] faces in China is not because of changes within [China],
but due to his personal decision to [become a practicing Christian
and make critical statements about the Chinese government]." See
Ming Chen, 722 F.3d at 66.
6 We thus need not reach Wang's arguments that the BIA did
not appropriately weigh the documents he submitted or determine
whether he made a prima facie case for relief. See Haizem Liu,
727 F.3d at 58 ("Where a petitioner fails to establish changed
circumstances, it is not necessary to reach the issue of whether
she has made out a prima facie case for relief.")
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