Yang Zhao-Cheng v. Holder , 721 F.3d 25 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2335
YANG ZHAO-CHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Scott Bratton and Margaret Wong & Associates Co., LPA on brief
for petitioner.
Katherine A. Smith, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Derek C. Julius, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
August 1, 2013
LYNCH, Chief Judge. Zhao-Cheng Yang,1 a native and
citizen of the People's Republic of China, was denied asylum and
was ordered excluded in 1998. He did not leave. In 2012, he
sought to reopen proceedings on the basis of changed circumstances
arising in his country of nationality. He now petitions for
judicial review of an order from the Board of Immigration Appeals
(BIA) denying his motion to reopen. Because the BIA did not abuse
its discretion in determining that Yang failed to demonstrate
changed country circumstances, it was not an abuse of discretion
for the BIA to deny his motion to reopen, and, accordingly, we deny
his petition for review.
I. Background
As a teenager in China, Yang was expelled from school
after protesting the school-attendance fee. Believing that he had
no future in China, and fearing that his actions and presence would
expose his parents to harassment, Yang hired a smuggler to take him
out of China unlawfully and to bring him to the United States.
Yang attempted to enter the United States in 1996. He was denied
admission and was placed in exclusion proceedings.2
1
Petitioner's name appears in various formulations in the
documents before this Court, but "Yang" seems to be his last name,
and we will refer to him accordingly.
2
The Immigration and Naturalization Service commenced
exclusion proceedings with a Form I-122, charging Yang as
excludable as a noncitizen seeking to enter the United States for
the purposes of performing labor without a labor certification
under 8 U.S.C. § 1182(a)(5)(A)(I) and as a noncitizen not in
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In 1997, Yang filed an asylum application, claiming that,
because he had left China unlawfully, if he returned, he could face
corporal punishment, fines, and incarceration. He also claimed
that he feared returning because of the Chinese government's forced
family-planning policies. In 1998, an Immigration Judge (IJ)
denied Yang's asylum application. Yang appealed to the BIA, but
the appeal was dismissed on December 8, 2000, because Yang failed
to file a brief in support of his appeal.
In 2012, Yang filed with the BIA a motion to reopen
proceedings. A motion to reopen generally must be filed within
ninety days of the final administrative decision. See 8 C.F.R.
§ 1003.2(c)(2), (3). The final administrative decision in this
case was the dismissal of Yang's appeal on December 8, 2000, twelve
years before he filed his motion to reopen. Yang contended that
his motion was not subject to the ninety-day rule because 8 C.F.R.
§ 1003.2(c)(3)(ii) permits the filing of a motion to reopen more
than ninety days after the final administrative decision if the
motion is brought to reapply for asylum based on changed
circumstances arising in the country of nationality, and if the
possession of a valid entry document, under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). Subsequent to Yang's exclusion proceedings,
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, div. C., 11 Stat. 3009-546
(codified as amended in scattered sections of 8 and 18 U.S.C.)
replaced exclusion proceedings with removal proceedings. See 8
U.S.C. § 1229a(e)(2).
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movant has material evidence that was not available and could not
have been discovered or presented at the previous hearing.
Specifically, Yang claimed that he had converted to
Christianity in 2011 and that, since the time of his 1998 hearing,
circumstances surrounding the practice of Christianity in China had
changed -- namely, persecution of unregistered3 Christian groups
had increased. Yang asserted that he would continue, on return to
China, to practice his religion by attending an unregistered
"house" church and by spreading the gospel to others. He would not
attend a registered, government-sanctioned church because he does
not believe that such churches truly teach religion. In light of
the Chinese government's persecution of unregistered-church
members, he asserted he would face a constant threat of punishment.
The BIA determined that Yang had failed to establish
changed circumstances in China,4 and so his untimely motion did not
3
The Chinese government requires all religious groups to
register with government religious affairs bureaus and to operate
under the supervision of official "patriotic" religious
organizations. See, e.g., U.S. Dep't of State, China Country
Report on Human Rights Practices for 1997 (1998), available at
http://www.state.gov/www/global/human_rights/1997_hrp_report/chin
a.html.
4
Before addressing Yang's evidence of changed circumstances,
the BIA noted -- correctly -- that Yang's changed personal
circumstances, his 2011 conversion to Christianity, did not
constitute changed country circumstances and thus could not form
the basis of his motion. See, e.g., Larngar v. Holder, 562 F.3d
71, 77 (1st Cir. 2009) (affirming that "a change in personal
circumstances should not qualify as a change in country
circumstances").
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qualify for the exception to the ninety-day rule. Accordingly, the
BIA denied the motion to reopen. This petition for review
followed.
II. Discussion
"We review the denial of a motion to reopen for abuse of
discretion." Romer v. Holder, 663 F.3d 40, 42 (1st Cir. 2011).
Yang argues it was an abuse of discretion for the BIA to conclude
that he had failed to establish changed circumstances in China.
Not so.
Yang bore the burden of establishing that circumstances
in China surrounding the persecution of unregistered Christian
groups changed between 1998 and 2012. See Larngar v. Holder, 562
F.3d 71, 76 (1st Cir. 2009) ("It is well-established that an
applicant bears the burden of establishing changed country
circumstances for purposes of § 1003.2(c)(3)(ii)."); 8 C.F.R.
§ 1003.2(c)(1). To satisfy that burden, Yang needed to provide the
BIA information regarding the level of persecution of unregistered
Christian groups in China in both 1998 and 2012. He provided
evidence that persecution in 20125 was severe, rising to the level
of detentions and beatings of unregistered-church members, and
referred to his filings in 1998. The BIA determined that he had
5
To be precise, when Yang filed his motion to reopen in 2012,
he submitted the most recent evidence available, which consisted of
reports from 2011 and 2010.
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failed to provide evidence that would support a finding of changed
circumstances in this time period.
The BIA first considered a Human Rights Watch World
Report for 1997, which Yang had submitted at his 1998 hearing. The
BIA noted that the report did not cover the relevant time period,
for it reflected the circumstances in 1996. Even if the report had
reflected the circumstances in 1998, the BIA determined that the
report would not have supported a finding that the level of
persecution facing unregistered Christian groups in China had
changed between 1998 and 2012. The report detailed a campaign that
forced all churches to register or face dissolution, resulting in
beating and harassment of congregants, closing of churches, and
numerous arrests, fines, and imprisonments. The evidence Yang
submitted of circumstances prevailing in 2012 details this same
type of severe persecution.
The BIA next discussed the fact that Yang cited
portions -- but did not provide to the BIA the full versions -- of
U.S. State Department Country Reports on China from 1997 through
2009. The BIA declined to take administrative notice of the full
reports, noting that Yang bore the burden of submitting them. Yang
argues that the BIA abused its discretion in refusing to take
notice of the reports in their entirety, since he selectively
quoted from them in his motion to reopen. He is wrong.
"[A]lthough the BIA is empowered to take administrative notice of
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'commonly known facts such as current events or the contents of
official documents,' it is not compelled to do so." Kaihua Huang
v. Holder, 312 F. App'x 420, 422 (2d Cir. 2009) (citation omitted)
(quoting 8 C.F.R. § 1003.1(d)(3)(iv)) (citing Hoxhallari v.
Gonzales, 468 F.3d 179, 186 n.5 (2d Cir. 2006) (per curiam)). That
these reports are available on the Internet does not relieve Yang
of his burden to submit to the BIA evidence supporting his claim.
See 8 C.F.R. § 1003.2(c)(1) ("A motion to reopen proceedings . . .
shall be supported by affidavits or other evidentiary material.").
Yang's motion stressed the fact that, according to the
2001 report, official repression of unregistered Christian groups
had "eased somewhat," while reports from later years showed an
increase in such repression. That religious persecution had "eased
somewhat" by 2001 told the BIA nothing about the persecution that
existed in 1998 -- the relevant year. Importantly, as the BIA
observed, what this statement demonstrates is that slight temporal
fluctuation in the level of ever-prevailing persecution is, itself,
a continuing circumstance -- not a "changed circumstance[]" as
required by the regulation. See 8 C.F.R. § 1003.2(c)(3)(ii). The
BIA did not abuse its discretion in concluding that the State
Department reports did not support a finding of changed
circumstances.
The BIA lastly considered the 2004 implementation of a
new religious regulation program in China, the State Administration
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for Religious Affairs, which Yang had cited in his motion. The BIA
permissibly determined that, according to the evidence presented by
Yang, the new regulations did not alter the amount of persecution
faced by unregistered Christian groups, as the same levels of
persecution persisted both before and after 2004. Yang has given
us no reason to conclude that this determination by the BIA was an
abuse of discretion.
In his brief to this Court, Yang references one further
source of information: the U.S. State Department Country Report on
China from 1995 from his original asylum application. That report
describes the circumstances that prevailed in China years before
Yang's 1998 hearing. The report also does not indicate that those
circumstances were materially different from circumstances in 2012.
In an attempt to downplay the level of persecution facing
unregistered Christian groups in the past, Yang claims that the
report states merely that the Chinese government "intermittently
harassed unregistered churches." But this is not an accurate
characterization of the report, which, in actuality, notes that
unregistered Christian churches were subject to raids and forced
closings, and their members were subject to detention.
There was no need for the BIA to reach the issue of
whether Yang made out a prima facie case for eligibility for
asylum. See, e.g., Gi Kuan Tsai v. Holder, 505 F. App'x 4, 9 (1st
Cir. 2013) (stating BIA need not address whether noncitizen made
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prima facie case for eligibility for asylum where BIA concluded in
its discretion that noncitizen failed to demonstrate changed
circumstances, thus failing to make showing necessary to file
untimely motion to reopen).
III. Conclusion
For the reasons stated above, Yang's petition for review
is DENIED.
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