Simonchyk v. Sessions
681 F. App'x 47
| 2d Cir. | 2017Background
- Petitioner Maryia Simonchyk, a Belarusian national, sought reopening of removal proceedings in 2011 after a 2004 BIA decision denying relief.
- Her 2011 motion was untimely and a second motion; statutory rules generally bar second or late motions to reopen absent material changed country conditions.
- Simonchyk submitted evidence of post-2010 election political unrest and targeted abuses of dissidents, and argued the government would now personally persecute her as a U.S.-affiliated dissident.
- The BIA denied reopening, finding no material change in country conditions for political dissidents generally and rejecting the individualized-risk showing.
- The Second Circuit reviewed the BIA denial for abuse of discretion and country-condition findings for substantial evidence, granted review in part, and remanded regarding individualized-change issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence of post-2010 Belarus conditions shows a material change excusing the time/number bars to reopen | Simonchyk: 2010–post-election abuse shows materially changed country conditions for political dissidents | Gov: Conditions described mirror those known in 2003–2004; no material change for dissidents generally | Denied as to general country-conditions claim; BIA decision supported by substantial evidence |
| Whether individualized evidence that the government would persecute Simonchyk personally can establish materially changed conditions | Simonchyk: New evidence shows the government now targets her as a U.S.-affiliated dissident, creating individualized change | Gov: BIA found individualized evidence insufficient (and treated as part of general-country analysis) | Granted in part and remanded: BIA must reassess reliability of individualized evidence or explain its legal view on individualized changes |
| Standard of review for BIA findings on country conditions | Simonchyk: BIA must compare new evidence to conditions at merits hearing | Gov: BIA applied Matter of S-Y-G- comparison and weighed evidence | Court: Substantial-evidence review applies; BIA reasonably compared and weighed evidence for general conditions |
| Whether Second Circuit has adopted approach treating individualized changes as sufficient to excuse filing bars | Simonchyk: urges recognition of individualized-change theory | Gov: BIA declined to adopt individualized-change theory | Court: Not previously addressed in precedential Second Circuit decisions; remand for BIA guidance and possible published explanation (compare Seventh and Eleventh Circuits) |
Key Cases Cited
- Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008) (standard of review for motions to reopen and changed country conditions)
- Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315 (2d Cir. 2006) (agency discretion in weighing evidence)
- Zhang v. U.S. Att'y Gen., 572 F.3d 1316 (11th Cir. 2009) (recognizing individualized change theory as potentially sufficient)
- Joseph v. Holder, 579 F.3d 827 (7th Cir. 2009) (same: individualized evidence can constitute changed country conditions)