Liang Wang v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 28, 2018
• Docket: 15-70785
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 28 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LIANG WANG, No. 15-70785

Petitioner, Agency No. A089-299-878

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted November 13, 2018 San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and KORMAN,** District Judge.

Petitioner Liang Wang, a citizen of the People’s Republic of China, sought

asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”) based on a fear of future persecution because of his membership

in the Chinese Democratic Party. Wang’s claims were rejected. After the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. statutorily authorized 90-day window for motions to reopen expired, Wang filed a

motion to reopen alleging changed circumstances or, in the alternative, invoking

the Board of Immigration Appeals’ (“BIA”) discretionary ability to reopen sua

sponte. The BIA denied his motion and Wang appeals.

1. We do not have jurisdiction over the BIA’s discretionary decision not to

exercise its sua sponte authority to reopen. Ekimian v. I.N.S., 303 F.3d 1153, 1159

(9th Cir. 2002); see also Bonilla v. Lynch, 840 F.3d 575, 581 (9th Cir. 2016).

Insofar as Wang seeks review of that discretionary decision, his petition is

dismissed.

2. Wang’s motion to reopen based on changed country conditions attached

the previous decisions in his case and news articles to support his claim. But it did

not include either his previously rejected asylum application or a new application.

Under 8 C.F.R. § 1003.2(c)(1), “[a] motion to reopen proceedings for the purpose

of submitting an application for relief must be accompanied by the appropriate

application for relief and all supporting documentation.” Because Wang did not

submit an application for relief as required by the regulation, the BIA denied his

motion to reopen. However, failure to submit an application with a motion to

reopen does not require denial of the motion. Konstantinova v. I.N.S., 195 F.3d

528, 530 (9th Cir. 1999). Where, as here, the petitioner does not seek a new form

2 of relief but rather review of a previously submitted application available to the

BIA, the original application need not be attached. See Socop-Gonzalez v. I.N.S.,

272 F.3d 1176, 1196-97 (9th Cir. 2011) (en banc). Accordingly, the BIA should

not have denied Wang’s motion to reopen for failure to attach his previously

submitted asylum application.

DISMISSED IN PART and GRANTED IN PART.