Lin Xing Jiang v. Holder
639 F.3d 751
| 7th Cir. | 2011Background
- Lin Xing Jiang, a Chinese national, entered the U.S. Virgin Islands in 2000 and faced removal proceedings after an asylum request based on coerced abortion.
- An IJ rejected Jiang’s asylum claim in 2002 and the BIA affirmed in 2004; Jiang did not timely pursue review after the 2004 decision.
- Over four years later Jiang moved to reopen, asserting changed country conditions and new evidence, including religious persecution claims and family-planning policy issues.
- The Board denied reopening, finding the evidence either was available earlier or not material, and noting Jiang failed Lozada-related requirements and failed to submit a new asylum application.
- Jiang sought judicial review in the Seventh Circuit; the court reviews the Board’s denial for abuse of discretion and defers unless irrational or impermissibly justified.
- The Seventh Circuit held the Board did not abuse its discretion: Lozada requirements were not satisfied, the changed-conditions evidence was not material, and the lack of a new asylum filing supported the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board properly denied reopening on changed-country-conditions grounds. | Jiang contends new conditions justify reopening. | Board found no material change not discoverable earlier. | Denied; no material changed circumstances shown. |
| Whether Jiang's ineffective-assistance claim required Lozada-compliant proof. | Failure to present Catholic persecution was due to counsel's ineffectiveness. | Lozada requirements govern; petition insufficient under Lozada. | Denied; Lozada requirements not satisfied. |
| Whether evidence of changed conditions was available or discoverable earlier and thus not valid for reopening. | Evidence was not presented previously due to counsel’s failure. | Evidence existed or could have been discovered; not material change. | Denied; evidence not material and not new. |
| Whether Jiang failed to submit a new asylum application with the motion to reopen as required. | New evidence implied a new asylum claim should be filed. | Procedural requirement not met; absence supports denial. | Denied; Board could rely on procedural failure. |
Key Cases Cited
- Kucana v. Holder, U.S. , 130 S.Ct. 827 (2010) (jurisdiction to review Board decisions in removal proceedings)
- Toure v. Holder, 624 F.3d 422 (7th Cir.2010) (no Sixth Amendment right to counsel in asylum proceedings; due process concerns via Lozada framework)
- Jezierski v. Mukasey, 543 F.3d 886 (7th Cir.2008) (ineffective-assistance claims governed by Lozada framework)
- Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) (three-part test for raising ineffectiveness claims)
- Joseph v. Holder, 579 F.3d 827 (7th Cir.2009) (personal changes insufficient without material country-condition change)
- Patel v. Gonzales, 496 F.3d 829 (7th Cir.2007) (Lozada requirements; sanctions for failure to comply)
- Cheng Chen v. Gonzales, 498 F.3d 758 (7th Cir.2007) (one-child policy claims cannot dominate changed-condition analysis absent material change)
- Conti v. INS, 780 F.2d 698 (7th Cir.1985) (procedural failure alone may defeat reopening)
- Zhao v. Gonzales, 440 F.3d 405 (7th Cir.2005) (changed-country-conditions framework)
- Ghaffar v. Mukasey, 551 F.3d 651 (7th Cir.2008) (affirms Lozada-derived standards for ineffective assistance)