     14-1374
     Jiang v. Lynch
                                                                                       BIA
                                                                               A089 922 661
                           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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   29th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PETER W. HALL,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GUANG QING JIANG, AKA YANG,
14            Petitioner,
15
16                    v.                                             14-1374
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Meer M. M. Rahman, New York, New
24                                       York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Assistant
27                                       Attorney General; Jennifer
28                                       Williams, Senior Litigation
1                                 Counsel; Lance L. Jolley, Trial
2                                 Attorney; Office of Immigration
3                                 Litigation, Washington, D.C.
4
5         UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9         Petitioner Guang Qing Jiang, a native and citizen of the

10   People’s Republic of China, seeks review of an April 8, 2014

11   decision of the BIA denying his motion to reopen as untimely.

12   In re Guang Qing Jiang, No. A089 922 661 (B.I.A. Apr. 8, 2014).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15        We review the BIA’s denial of a motion to reopen “for abuse

16   of   discretion,   mindful    that   motions   to   reopen   ‘are

17   disfavored.’”   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

18   (per curiam) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).

19   When the BIA considers relevant evidence of country conditions

20   in evaluating a motion to reopen, we review the BIA’s factual

21   findings under the substantial evidence standard.       Jian Hui

22   Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

                                     2
1          The BIA’s denial of Jiang’s motion to reopen as untimely

2    was not an abuse of discretion.           Jiang’s January 2014 motion

3    was untimely, as he filed it over one year after the final order

4    of    removal   was    issued   in    July    2012.         See    8     U.S.C.

5    § 1229a(c)(7)(C)(i) (setting 90-day period for filing motion

6    to reopen); 8 C.F.R. § 1003.2(c)(2) (same).             Although failure

7    to meet this time limitation may be excused if the motion “is

8    based on changed country conditions arising in the country of

9    nationality or the country to which removal has been ordered,

10   if such evidence is material and was not available and would

11   not   have   been     discovered     or   presented    at    the       previous

12   proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA reasonably

13   concluded that Jiang did not establish changed conditions for

14   pro-democracy activists in China.

15         Jiang asserted that “[a]s part of th[e] ‘Jasmine’ crackdown

16   [in 2011], Chinese authorities have arrested activists and

17   members of the China Democratic Party.”               Pet’r’s Br. at 22.

18   Although some of Jiang’s evidence reflects that the “Jasmine

19   Revolution” “has prompted the heaviest wave of arrests of

20   Chinese activists for several years,” Certified Administrative

                                           3
1    Record at 265, the Chinese government has long banned the party

2    and suppressed pro-democracy activity through arrests and

3    detention.   According to the U.S. Department of State’s 2012

4    Country Report on Human Rights Practices, “the CDP [Chinese

5    Democracy Party] remained banned, and the government continued

6    to monitor, detain, and imprison current and former CDP

7    members.”    Id. at 222.   (Emphasis added.)      It also reports

8    that “[o]ther current or former CDP members . . . remained in

9    prison or in RTL camps for their calls for political reform and

10   their affiliation with the CDP.”    Id. at 225.   One news article

11   submitted by Jiang recounts the history of the CDP in China and

12   waves of arrests and crackdowns that predate Jiang’s hearing.

13   Further, the evidence presented by Jiang does not pertain to

14   returning Chinese nationals who have been politically active

15   while   abroad.    Accordingly,    Jiang’s   evidence   showed   no

16   relevant or material change in conditions in China.

17       Further, contrary to Jiang’s assertion, a change in

18   personal circumstances while in the United States, such as his

19   joining the National Committee Democratic Party of China

20   (“DPC”), is not a changed condition that excuses failure to meet

                                    4
1    the time limitation on moving to reopen.              Wei Guang Wang v. Bd.

2    of Immigration Appeals, 437 F.3d 270, 274 (2d Cir. 2006) (“A

3    self-induced        change   in     personal         circumstances     cannot

4    suffice.”).         To the extent that Jiang alleged a change

5    particular     to    himself      that       might   excuse   his    motion’s

6    untimeliness—the       Chinese     government’s         awareness    of   his

7    political activity in the United States—the BIA did not abuse

8    its discretion in declining to give weight to his evidence, a

9    letter from his father and a statement from a DPC chairman in

10   the United States.       See Xiao Ji Chen v. U.S. Dep’t of Justice,

11   471 F.3d 315, 342 (2d Cir. 2006) (holding that weight given

12   corroborating evidence lies largely with discretion of agency).

13   Jiang does not meaningfully challenge the BIA’s decision to

14   afford limited weight to these documents.                See Yueqing Zhang

15   v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).

16   Moreover, given the lack of evidence that the chairman had

17   knowledge of current conditions in China; the fact that Jiang’s

18   father’s letter was an unsworn statement, prepared for the

19   purpose of litigation by an interested party not subject to

20   cross examination; and its underlying adverse credibility

                                              5
1    determination with regard to Jiang, the BIA did not abuse its

2    discretion in declining to give weight to the documents.    See

3    Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007)

4    (upholding    agency’s    refusal   to    credit    applicant’s

5    individualized evidence supporting motion to reopen when

6    adverse credibility determination was made in underlying

7    proceedings); Xiao Ji Chen, 471 F.3d at 342; Matter of H-L-H

8    & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010) (giving

9    diminished evidentiary weight to letters from interested

10   witnesses not subject to cross examination), overruled on other

11   grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

12       Jiang’s failure to present objective evidence of the

13   Chinese government’s awareness of his political activities or

14   a pattern or practice of persecution of individuals who were

15   politically active outside of China meant that Jiang could not

16   demonstrate either any material change in country conditions

17   or his prima facie eligibility for relief.   See Hongsheng Leng

18   v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per curiam).

19   Finally, we construe his public policy-based argument that the

20   BIA should have reopened as an argument that the BIA should have

                                    6
1    decided to reopen sua sponte; we lack jurisdiction, however,

2    to review that “entirely discretionary” decision.     Ali, 448

3    F.3d at 518 (citing 8 C.F.R. § 1003.2(a)).

4        For the foregoing reasons, the petition for review is

5    DENIED.    As we have completed our review, any stay of removal

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal in this petition

8    is DISMISSED as moot.    Any pending request for oral argument

9    in this petition is DENIED in accordance with Federal Rule of

10   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

11   34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O=Hagan Wolfe, Clerk




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