         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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