Tan Zhang v. Eric Holder, Jr. ( 2010 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                File Name: 10a0429n.06
    
                                              No. 09-3901                                  FILED
                                                                                        Jul 14, 2010
                              UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT
    
    
    TAN WU ZHANG,                                           )
                                                            )
           Petitioner,                                      )
                                                            )
    v.                                                      )    ON PETITION FOR REVIEW OF A
                                                            )    FINAL ORDER OF THE BOARD OF
    ERIC H. HOLDER, JR.,                                    )    IMMIGRATION APPEALS
                                                            )
           Respondent.                                      )
                                                            )
                                                            )
    
    
           Before: KENNEDY, ROGERS, and KETHLEDGE, Circuit Judges.
    
           KETHLEDGE, Circuit Judge. Petitioner Tan Wu Zhang, a native of China, entered the
    
    United States in 1999 and applied for asylum. An immigration judge denied that application in
    
    2004; the Board of Immigration Appeals (BIA) summarily affirmed the judge’s decision in 2005.
    
    Zhang was then ordered removed to China, though it appears he never left the United States.
    
           In 2008, almost three years after his removal order was entered, Zhang filed a motion with
    
    the BIA to reopen his asylum proceedings. He alleged that he had joined the Party for Freedom and
    
    Democracy in China (PFDC), and that, if he returned to China, he would be persecuted because of
    
    his political activities. To corroborate his claim, Zhang attached several documents showing that,
    
    because of his PFDC membership, the Chinese government was harassing his family members who
    
    remained in China.
    No. 09-3901
    Zhang v. Holder
    
           The BIA acknowledged Zhang’s evidence, but denied his motion as untimely. Generally, an
    
    alien must file a motion to reopen within 90 days of entry of a removal order. See 8 U.S.C.
    
    § 1229a(c)(7)(C)(i). Zhang conceded that he did not meet that deadline, but argued that his motion
    
    was exempt from the deadline because it sought to raise an asylum claim and was based on “changed
    
    country conditions.” See id. § 1229a(c)(7)(C)(ii) (“There is no time limit on the filing of a motion
    
    to reopen if the basis of the motion is to apply for [asylum or withholding of removal] and is based
    
    on changed country conditions arising in the country of nationality or the country to which removal
    
    has been ordered”). The BIA rejected Zhang’s argument, concluding that his increased political
    
    activity was only “a change in his personal circumstances, and not a changed condition or
    
    circumstance in China.” A.R. at 4.
    
           Zhang now petitions for review of the BIA’s decision, again arguing that his motion was
    
    timely because it was based on changed country conditions. Specifically, Zhang says that
    
    “conditions ha[ve] changed in China adverse to him as a dissident,” as shown by the Chinese
    
    government’s harassment of his family members. Zhang’s Br. at 16. We review the BIA’s denial
    
    of a motion to reopen for an abuse of discretion. See Daneshvar v. Ashcroft, 
    355 F.3d 615
    , 625 (6th
    
    Cir. 2004).
    
           As an initial matter, the BIA correctly held that Zhang must show “changed country
    
    conditions,” not merely changed personal circumstances. 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis
    
    added); see also Haddad v. Gonzales, 
    437 F.3d 515
    , 517 (6th Cir. 2006). Courts generally
    
    distinguish between the two based on who is responsible for the changed condition: If a country, for
    
    its own reasons, becomes more hostile towards an alien or his group, then changed country
    
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    No. 09-3901
    Zhang v. Holder
    
    conditions may exist; but if an alien voluntarily becomes a member of an already-oppressed group,
    
    then he has simply altered his personal circumstances. See, e.g., Niyibizi v. Mukasey, 300 F. App’x
    
    371, 375 (6th Cir. 2008) (an alien has altered his personal circumstances if “a static country
    
    condition . . . now affect[s] the applicant due to a personal choice the applicant made while in this
    
    country”); Larngar v. Holder, 
    562 F.3d 71
    , 76 (1st Cir. 2009) (“Under the case law, a change
    
    typically will be categorized as a change in personal circumstances, as opposed to a change in
    
    country circumstances, if the change is self-induced”).
    
           Here, Zhang concedes that his asserted change in his country’s condition—the Chinese
    
    government’s increased hostility towards him—is based solely on his actions in this country, rather
    
    than a shift in China’s attitude toward dissidents generally. See, e.g., Reply Br. at 2 (“Zhang amply
    
    demonstrated that country conditions ha[ve] changed in China because of his participation in the
    
    PFDC”). Thus, Zhang’s motion was based on changed personal circumstances, not changed country
    
    conditions. Indeed we have held as much in two cases that are nearly identical to Zhang’s. See Liu
    
    v. Holder, 
    560 F.3d 485
    , 493 (6th Cir. 2009) (“Liu’s remaining evidence, which depicted his
    
    membership and participation in the [China Democratic Party] and its activities in the United States,
    
    demonstrated a change in Liu’s personal circumstances but did not demonstrate changed country
    
    conditions in China”); see also Wang v. Holder, 359 F. App’x 589, 596 (6th Cir. 2009). The BIA
    
    did not abuse its discretion, therefore, in declining to reopen Zhang’s asylum proceedings.
    
           Zhang’s petition for review is denied.
    
    
    
    
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