Jian-Guang Wang v. Holder , 443 F. App'x 631 ( 2011 )

10-2290-ag
Wang v. Holder
BIA
A070 897 530
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 28th day of October, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN-GUANG WANG,
14 Petitioner,
15
16 v. 10-2290-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Russell J.E. Verby, Senior
27 Litigation Counsel; Jennifer R.
28 Khouri, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 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 GRANTED.
5 Jian-Guang Wang, a native and citizen of the People’s
6 Republic of China, seeks review of a May 20, 2010, order of
7 the BIA denying his motion to reopen. In re Jian-Guang Wang,
8 No. A070 897 530 (B.I.A. May 20, 2010). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history 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)). There is no dispute
16 that Wang’s 2009 motion to reopen was untimely because he
17 was ordered removed in absentia in 1996 and the BIA affirmed
18 an immigration judge’s denial of his first motion to rescind
19 and reopen in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i);
20 8 C.F.R. § 1003.2(c)(2). Wang contends that the time and
21 number limitations do not apply to his motion to reopen as
22 it is “based on changed country conditions arising in the
2
1 country of nationality,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
2 8 C.F.R. § 1003.2(c)(3)(ii).
3 Wang asserts that he has a well-founded fear of future
4 persecution based on his baptism and increased practice of
5 Christianity beginning in 2009. This change in personal
6 circumstances is insufficient to establish an exception to
7 the filing deadline for motions to reopen. See Yuen Jin v.
8 Mukasey, 538 F.3d 143, 155 (2d Cir. 2008)(citing Wei Guang
9 Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006)). However, we
10 have not squarely addressed the question of “whether a
11 petitioner whose changed personal conditions (which result
12 in his falling into a category of individuals threatened by
13 changed country conditions) can rely on those changed
14 country conditions in an untimely motion to reopen where the
15 underlying change in personal conditions postdated his order
16 to depart.” Fong Chen v. Gonzales, 490 F.3d 180, 184 (2d
17 Cir. 2007) (per curiam) (emphasis in original), superseded
18 on other grounds by Fong Chen v. Mukasey, 255 F. App’x 573
19 (2d Cir. 2007) (unpublished). “On the one hand, the BIA
20 abuses its discretion if it fails completely to address
21 evidence of changed country conditions.” Wei Guang Wang,
22 437 F.3d at 275. On the other, this Court has viewed with
3
1 disfavor an alien’s effort to leverage a “self-induced
2 change in personal circumstances” into new eligibility for
3 relief following an order of removal. Id. at 274 (noting
4 that “apparent gaming of the system in an effort to avoid
5 [removal] is not tolerated by the existing regulatory
6 scheme”); see also Yuen Jin, 538 F.3d at 155 (recognizing
7 that if relief could be granted based on such a change,
8 “[a]liens would have every incentive to disregard their
9 removal orders and remain in the United States long enough
10 to change their personal circumstances (e.g., by having
11 children or practicing a persecuted religion) and initiate
12 new proceedings via a new asylum application.”). However,
13 in Wei Guang Wang, this Court went on to review the merits
14 of the agency’s country conditions determination. See Wei
15 Guang Wang, 437 F.3d at 274-76.
16 Here, the discrepancy regarding whether Wang was from
17 Fujian or Zhejiang province was not a sufficient basis for
18 the BIA to disregard the country conditions evidence because
19 Wang asserted that conditions had worsened throughout China,
20 the country conditions evidence contains information about
21 enforcement in both Fujian and Zhejiang provinces, and,
22 although Wang’s motion papers indicated that he is from
4
1 Fujian province, all other documents in the record indicate
2 that he is from Zhejiang province. Because the BIA failed
3 to consider any of the more than 100 pages of country
4 conditions evidence that Wang submitted, we remand for the
5 BIA to consider whether Wang established changed country
6 conditions in China, see Tian-Yong Chen v. INS, 359 F.3d
7 121, 128 (2d Cir. 2004) (remanding because the BIA failed to
8 consider evidence supporting the petitioner’s claim), or to
9 explain whether it is the agency’s position that, even
10 assuming changed country conditions, a change in personal
11 circumstances which corresponds with the changed conditions
12 is an insufficient basis for reopening.
13 For the foregoing reasons, the petition for review is
14 GRANTED. As we have completed our review, the pending
15 motion for a stay of removal in this petition is DENIED as
16 moot. Any pending request for oral argument in this
17 petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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