         13-2618
         Jiang v. Lynch
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A073 620 240
                               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 3rd day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                ROSEMARY S. POOLER,
10                DENNY CHIN,
11                     Circuit Judges.
12       _____________________________________
13
14       CHUNHUA JIANG, AKA LONG SHENG JIANG,
15                Petitioner,
16
17                            v.                                13-2618
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.*
22       ______________________________________
23
24       FOR PETITIONER:                Lee Ratner, Law Offices of Michael
25                                      Brown, PC, New York, NY.


                          *
                     Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
             General Loretta E. Lynch is automatically substituted for former Attorney
             General Eric H. Holder, Jr.
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; David V. Bernal, Assistant
 3                           Director; Lindsay W. Zimliki,
 4                           Attorney, 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 GRANTED in part and DENIED in part.

12       Petitioner Chunhua Jiang, a native and citizen of

13   China, seeks review of a June 21, 2013 order of the BIA,

14   affirming the December 3, 2012 decision of an Immigration

15   Judge (“IJ”), which denied his motion to reopen as untimely.

16   In re Chunhua Jiang, No. A073 620 240 (B.I.A. June 21,

17   2013), aff’g No. A073 620 240 (Immig. Ct. N.Y. City Dec. 3,

18   2012).   We assume the parties’ familiarity with the

19   underlying facts and procedural history in this case.

20       Under the circumstances of this case, we review the

21   IJ’s decision as modified by the BIA, i.e., minus the bases

22   for denying relief that were not relied upon by the BIA.

23   See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,

24   522 (2d Cir. 2005).

25       We review the BIA’s decision affirming an IJ’s denial

26   of a motion to reopen for abuse of discretion.   Iavorski v.


                                   2
 1   INS, 232 F.3d 124, 128 (2d Cir. 2000); see Ali v. Gonzales,

 2   448 F.3d 515, 517 (2d Cir. 2006) (per curiam).     An alien

 3   seeking to reopen proceedings is required to file a motion

 4   to reopen no later than 90 days after the date on which the

 5   final administrative decision was rendered.      See 8 U.S.C.

 6   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).    There is no

 7   dispute that Jiang’s 2012 motion was untimely because his

 8   order of removal became final in 1997.   See 8 U.S.C.

 9   § 1101(a)(47)(B)(ii).   Jiang contends, however, that the

10   Chinese government’s awareness of his religious activities

11   in the United States, and its corresponding threats, and

12   generally worsened conditions for underground church members

13   in China, constitute materially changed conditions excusing

14   the untimeliness of his motion.   See 8 U.S.C.

15   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

16       The BIA did not abuse its discretion in finding that

17   Jiang failed to demonstrate a material change in country

18   conditions on the basis of his generalized evidence.     “In

19   determining whether evidence accompanying a motion to reopen

20   demonstrates a material change in country conditions that

21   would justify reopening, [the BIA] compare[s] the evidence

22   of country conditions submitted with the motion to those


                                   3
 1   that existed at the time of the merits hearing below.”      In

 2   re S-Y-G-, 24 I. &N. Dec. 247, 253 (B.I.A. 2007).    However,

 3   as the BIA observed, Jiang failed to support his motion with

 4   any evidence of conditions for underground church members at

 5   the time of his 1997 merits hearing.    He was therefore

 6   unable to demonstrate materially changed conditions on the

 7   basis of his generalized evidence.     See id.

 8       Whether Jiang established materially changed country

 9   conditions based on his individualized evidence is a closer

10   question.   The BIA found that the government’s awareness of

11   Jiang’s religious activities in the United States, and its

12   corresponding threats, were changes in Jiang’s personal

13   circumstances.   The BIA has not, however, addressed in a

14   precedential decision whether a change that pertains to a

15   particular individual in his home country, as opposed to a

16   general change in policy, is sufficient to establish the

17   “changed country conditions” necessary to excuse the 90–day

18   time limitation on motions to reopen.    Nor have we addressed

19   the question in a precedential decision.     See, e.g., Chang

20   Fan Zeng v. Holder, 487 F. App’x 643, 644-45 (2d Cir. 2012).

21   Moreover, there is some ambiguity in the statute and

22   regulation, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 U.S.C. §


                                   4
 1   1003.2(c)(2), and other circuits apparently have found

 2   changed country conditions based in part on changed personal

 3   circumstances.     See, e.g., Joseph v. Holder, 579 F.3d 827,

 4   834 (7th Cir. 2009); Mei Ya Zhang v. U.S. Att’y Gen., 572

 5   F.3d 1316, 1320 (11th Cir. 2009).     In light of these

 6   circumstances, we remand to the BIA.     When reviewing a

 7   non-precedential BIA decision, we have often remanded so

 8   that “the BIA [can] by published opinion interpret a statute

 9   it is charged with enforcing.”      Dobrova v. Holder, 607 F.3d

10   297, 300 (2d Cir. 2010); see also Jian Hui Shao v. BIA, 465

11   F.3d 497, 502-03 (2d Cir. 2006).     One of the many reasons

12   for this procedure is that “any effort expended by us

13   interpreting the statute would be for nought should the BIA

14   subsequently reach a different, yet reasonable,

15   interpretation.”     Jian Hui Shao, 465 F.3d at 502; see also

16   Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116-17

17   (2d Cir. 2006) (setting forth numerous factors in favor of

18   remand).

19       For the foregoing reasons, the petition for review is

20   GRANTED in part and DENIED in part, and the case is REMANDED

21   to the BIA for further proceedings consistent with this

22   order.     As we have completed our review, any stay of removal

23   that the Court previously granted in this petition is
                                     5
 1   VACATED, and any pending motion for a stay of removal in

 2   this petition is DENIED as moot.    Any pending request for

 3   oral argument in this petition is DENIED in accordance with

 4   Federal Rule of Appellate Procedure 34(a)(2), and Second

 5   Circuit Local Rule 34.1(b).

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




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