         13-340
         Jiang v. Lynch
                                                                                       BIA
                                                                               A096 401 221
                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of January, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YONG HUA JIANG, A.K.A. ANTHONY JOHN DU,
14       A.K.A. YONGHUA JIANG,
15                Petitioner,
16
17                            v.                                13-340
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.1
22       _____________________________________
23
24       FOR PETITIONER:                Ai Tong, Law Office of Ai Tong, P.C.
25                                      New York, N.Y.
26
27       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney

                          1
                   Loretta E. Lynch is automatically substituted as
             the respondent in this case pursuant to Federal Rule of
             Appellate Procedure 43(c)(2).
 1                          General; Blair T. O’Connor,
 2                          Assistant Director; Rosanne M.
 3                          Perry, Trial Attorney, Civil
 4                          Division, Office of Immigration
 5                          Litigation, United States Department
 6                          of Justice, Washington D.C.
 7
 8       UPON DUE CONSIDERATION of this petition for review of a

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

10   ORDERED, ADJUDGED, AND DECREED that the petition for review

11   is DENIED.

12       Petitioner Yong Hua Jiang, a native and citizen of

13   China, seeks review of a January 17, 2013 decision of the

14   BIA denying his motion to reopen.   In re Yong Hua Jiang,

15   a.k.a. Anthony John Du, a.k.a. Yonghua Jiang, No. A096 401

16   221 (BIA Jan. 17, 2013).   We assume the parties’ familiarity

17   with the underlying facts and procedural history in this

18   case.

19       We review the BIA’s denial of a motion to reopen for

20   abuse of discretion, mindful that such motions are

21   “disfavored,” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

22   2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)),

23   and the agency’s factual findings regarding country

24   conditions under the substantial evidence standard, Jian Hui

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

26       Aliens seeking to reopen proceedings may move to reopen

                                   2
 1   no later than 90 days after the final administrative

 2   decision was rendered.     8 U.S.C. § 1229a(c)(7)(C)(i); 8

 3   § C.F.R. 1003.2(c)(2).     However, this time limitation does

 4   not apply if the motion is “based on changed country

 5   conditions arising in the country of nationality or the

 6   country to which removal has been ordered, if such evidence

 7   is material and was not available and would not have been

 8   discovered or presented at the previous proceedings.”        8

 9   U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

10          It is undisputed that Jiang’s motion to reopen was

11   untimely: he filed it nearly five years after the agency

12   entered an order of removal against him.     The BIA determined

13   that he failed to carry his heavy burden of demonstrating

14   material changed country conditions that would excuse his

15   delay.     See Matter of S-Y-G-, 24 I. & N. Dec. 247, 251, 258

16   (BIA 2007); 8 U.S.C. § 1229a(c)(7)(C)(ii).     The BIA

17   “compare[d] the evidence of country conditions submitted

18   with the motion to those that existed at the time of the

19   merits hearing below.”     Matter of S-Y-G-, 24 I. & N. Dec. at

20   253.     Jiang did not submit 2005 reports on Chinese country

21   conditions.     Thus, the BIA compared 2010 country reports to

22   the materials already in the record and found that China’s


                                     3
 1   mistreatment of political dissidents is ongoing.     This

 2   conclusion was sound, for “[c]hange that is incremental or

 3   incidental does not meet the regulatory requirements for

 4   late motions” to reopen.     Matter of S-Y-G-, 24 I. & N. Dec.

 5   at 257.

 6       The agency had the discretion to discredit the letters

 7   Jiang submitted, which came from his father and two

 8   dissidents in China.     None of the letters was notarized.

 9   And while the agency errs in rejecting documents solely

10   because they were not authenticated pursuant to 8 C.F.R.

11   § 1287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

12   391, 404-05 (2d Cir. 2005), the BIA here provided additional

13   reasons for giving them limited weight, Xiao Ji Chen v. U.S.

14   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).     Jiang’s

15   father was an interested witness not subject to

16   cross-examination, who wrote his letter to the IJ for the

17   purpose of litigation.     Matter of H-L-H- & Z-Y-Z-, 25 I. &

18   N. Dec. 209, 215 (BIA 2010), rev’d on other grounds sub nom.

19   Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).       The

20   dissidents’ letters were specious.     They purportedly lived

21   in different parts of China, but wrote remarkably similar

22   letters thanking Jiang for contributing one hundred dollars

23   to their political cause.     Both dissidents warned Jiang of

                                     4
 1   Chinese government surveillance of their communications; yet

 2   despite that warning, they sent Jiang thank-you notes with

 3   which they enclosed their residential identification cards.

 4       The agency was also within its discretion to deem

 5   Jiang’s “posting of internet articles” about his political

 6   activities to be “[a] self-induced change in personal

 7   circumstances,” which “cannot suffice” to excuse an untimely

 8   motion to reopen.     Wei Guang Wang v. BIA, 437 F.3d 270, 274

 9   (2d Cir. 2006).     Moreover, the articles’ existence proved

10   nothing about the Chinese government’s awareness of them.

11   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.

12   2008).

13       Finally, Jiang is not eligible to file a successive

14   asylum petition. “[A] properly filed motion to reopen is a

15   prerequisite to the filing of a new asylum petition when the

16   petitioner is under a final removal order.”     Yuen Jin v.

17   Mukasey, 538 F.3d 143, 152 (2d Cir. 2008).     Jiang has been

18   under a final removal order since 2005 and, for the reasons

19   set forth above, failed to satisfy the prerequisite of a

20   properly filed motion to reopen.

21       The Court need not decide whether Jiang is prima facie

22   eligible for asylum (an issue he does not raise) because the

23   lack of changed country conditions is dispositive of the

                                     5
 1   motion.

 2       For the foregoing reasons, the petition for review is

 3   DENIED.   As we have completed our review, the motion for

 4   stay of removal is DISMISSED as moot.

 5                               FOR THE COURT:
 6
 7                               Catherine O’Hagan Wolfe, Clerk
 8
 9
10
11




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