539 F. App'x 23
2d Cir.2013Background
- Petitioner Jiangdong Jiang, a Chinese national, had an administrative removal order that became final in 2004 and filed a first motion to reopen in 2008 which was denied.
- In 2011 Jiang filed a second motion to reopen based on his conversion to Christianity in the United States and sought to assert a religion-based asylum claim.
- The BIA denied the second motion as untimely and number‑barred under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c), and because Jiang failed to submit an asylum application with the motion.
- The BIA also found Jiang’s submitted evidence did not demonstrate changed country conditions in China or a likelihood of persecution if returned.
- The Second Circuit reviewed the BIA’s denial for abuse of discretion and denied Jiang’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and numerical bar for motion to reopen | Jiang contended exception for changed country conditions applied | Government argued motion was untimely and precluded by prior motion | Motion to reopen was properly denied as untimely and number‑barred |
| Nature of "changed circumstances" exception | Jiang argued conversion to Christianity justified reopening | Government argued conversion is a personal change in U.S., not changed conditions in China | Conversion is a personal U.S. change; does not trigger country‑conditions exception |
| Requirement to attach application for relief to motion | Jiang did not file an asylum application with the motion | Government relied on regulation requiring the appropriate application with the motion | BIA permissibly denied in part for failure to attach an asylum application |
| Sua sponte reopening jurisdiction | Jiang sought review of BIA’s decision not to reopen sua sponte | Government maintained the sua sponte decision is committed to agency discretion and unreviewable | Court held it lacked jurisdiction to review BIA’s discretionary sua sponte denial |
Key Cases Cited
- Kaur v. BIA, 413 F.3d 232 (2d Cir.) (standards for reviewing BIA motions to reopen)
- Joaquin-Porras v. Gonzales, 435 F.3d 172 (2d Cir.) (deference to agency interpretation of its own regulations)
- Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.) (distinguishing country‑condition changes from personal changes)
- Wei Guang Wang v. BIA, 437 F.3d 270 (2d Cir.) (same principle regarding personal vs country changes)
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.) (substantial evidence review of changed country‑conditions findings)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir.) (agency sua sponte reopening is discretionary and generally unreviewable)