Yan Qing Jiang v. Holder

557 F. App'x 94

• Court: Court of Appeals for the Second Circuit
• Decided: March 4, 2014
• Docket: 12-5110
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner Yan Qing Jiang, a native and citizen of China, seeks review of a December 4, 2012, decision of the BIA denying his motion to reopen. In re Yan Qing Jiang, No. A078 861 601 (B.I.A. Dec. 4, 2012). We assume the parties’ familiarity with the underlying facts and procedural history of this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). We review the BIA’s factual findings regarding country conditions under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).

The BIA did not abuse its discretion in denying Jiang’s motion to reopen as untimely as it was filed more than seven years after his final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although there are no time limitations for filing a motion to reopen if it is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii), Jiang has not established any error in the BIA’s conclusion that there was no material change.

First, Jiang’s conversion to Christianity is a change in personal circumstances that does not excuse the time limitation. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005); see also Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.2006). Moreover, there is no basis for finding that the BIA ignored evidence of country conditions, as the BIA explicitly discussed the evidence and reasonably concluded that it did not establish a change since the time of the hearing because the reports showed a continuation of religious repression, not new conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n. 17 (2d Cir.2006) (presuming that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise”); In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)(“In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.”).

Because the BIA did not abuse its discretion in denying Jiang’s motion to reopen as untimely, and timeliness is a prerequisite to consideration of eligibility for the requested relief, we need not reach Jiang’s arguments regarding his prima fa-cie eligibility for asylum. See 8 U.S.C. § 1229a(c)(7)(C).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).