Pang v. Sessions
17-9500
| 10th Cir. | Nov 29, 2017Background
- Zhi Wei Pang, Chinese national, entered the U.S. in 1993 and was denied asylum, withholding, and CAT protection by an IJ in 2008; BIA affirmed in 2010 and this court denied review.
- In 2016 Pang filed a motion to reopen nearly six years after the BIA’s final order; he did not submit a new asylum application or specify the relief sought beyond alleging "continued economic persecution by the Chinese Government."
- Pang’s affidavit claimed personal changes: his wife’s disappearance, confiscation of land, and threats when he challenged the seizure; he conceded some seizure was for alleged abandonment.
- The BIA held the motion untimely under 8 C.F.R. § 1003.2(c)(2) and found Pang failed to show changed country conditions that would excuse the late filing.
- The BIA also concluded Pang did not present an exceptional situation warranting sua sponte reopening.
- Pang’s argument on CAT protection was not raised in the motion to reopen, so the court declined to consider it for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the untimely motion to reopen can be excused by changed country conditions in China | Pang argued his post-2008 personal harms (land confiscation, threats, wife’s disappearance) demonstrate changed conditions warranting reopening | Government argued evidence showed changed personal circumstances, not changed country conditions, and Pang provided no country-wide evidence linking harms to a protected ground | Held: Motion untimely; Pang failed to show changed country conditions to excuse the 90-day limit, so reopening denied |
| Whether Pang’s new evidence was material and would likely change the outcome if proceedings were reopened | Pang asserted new facts in affidavit would support asylum/withholding relief | Government argued Pang’s materials lacked connection to a protected ground and were not materially new country-condition evidence | Held: Evidence insufficiently material to demonstrate likely change in outcome; motion denied |
| Whether a change in personal circumstances (rather than country conditions) can support an untimely motion to reopen for asylum/withholding | Pang contended his changed personal circumstances justify reopening | Government maintained the regulation permits exception only for changed country conditions, not private personal changes | Held: Change in personal circumstances is insufficient; regulation requires changed country conditions for the untimely exception |
| Whether the BIA abused discretion by not reopening sua sponte or considering CAT protection raised on appeal | Pang urged the BIA should exercise sua sponte authority and/or consider CAT relief | Government defended the BIA’s discretionary denial and noted Pang did not raise CAT in his motion | Held: Sua sponte reopening is unreviewable and BIA did not abuse discretion; CAT claim not considered because it was not raised in the motion (court lacks jurisdiction to address it) |
Key Cases Cited
- Infanzon v. Ashcroft, 386 F.3d 1359 (10th Cir.) (standards for BIA abuse of discretion on motions to reopen)
- Belay-Gebru v. INS, 327 F.3d 998 (10th Cir.) (sua sponte reopening committed to BIA discretion and not judicially reviewable)
- Maatougui v. Holder, 738 F.3d 1230 (10th Cir.) (requirements for alleging new facts and supporting evidence in a motion to reopen)
- Wei v. Mukasey, 545 F.3d 1248 (10th Cir.) (change in personal circumstances does not substitute for changed country conditions to toll motion-to-reopen deadline)
- Akinwunmi v. INS, 194 F.3d 1340 (10th Cir.) (court lacks jurisdiction to consider issues not raised in motion to reopen)