Wei Fang v. Jefferson B. Sessions, III
702 F. App'x 338
| 6th Cir. | 2017Background
- Wei Fang, a Chinese national, entered the U.S. without inspection in 2007, admitted removability, and applied for asylum, withholding, and CAT protection based initially on his wife’s forced abortion and later on political activity (CDP) and religious conversion.
- An IJ denied relief after finding Fang not credible; the BIA affirmed on the merits (assuming credibility). This court previously denied Fang’s petition for review.
- In July 2015 Fang filed a motion to reopen with a new asylum application claiming he converted to Christianity in 2014 and would face persecution if returned to China.
- The BIA denied the motion as untimely (filed well beyond the 90-day deadline) and held Fang failed to show a material change in country conditions for Christians since his 2010 hearing to invoke the exception to the filing deadline.
- The BIA also concluded Fang failed to make a prima facie showing of eligibility for asylum, withholding, or CAT relief because he did not show how Chinese authorities would learn of his faith or present evidence tying reported abuses to his specific situation.
- The Sixth Circuit reviewed the BIA’s denial for abuse of discretion and denied Fang’s petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen | Fang: motion timely under changed country conditions exception based on increased persecution of Christians and his 2014 baptism | BIA: motion untimely; conversion is personal change and evidence did not show material countrywide change since 2010 | Motion untimely; exception not met |
| Sufficiency of country-condition evidence | Fang: new reports (e.g., China Aid, others) show worsening conditions for Christians in China | BIA: submitted reports show continued tensions but not a material worsening in Fang’s home province or tying him to harm | Evidence insufficient to show material change in conditions |
| Prima facie eligibility for relief | Fang: conversion and reports show a well-founded fear of persecution if returned | BIA: Fang failed to show how authorities would learn of his beliefs; evidence concerns different regions/actors not similarly situated | No prima facie showing; relief not likely |
| Consideration of particular reports | Fang: BIA ignored or misread reports (e.g., China Aid, Australian Refugee Rights Alliance) | BIA: considered reports but found they lacked province-specific or claimant-specific detail to support Fang’s claim | BIA did not err in weighing or rejecting those reports |
Key Cases Cited
- Liu v. Holder, 560 F.3d 485 (6th Cir. 2009) (standard for reviewing BIA denial of motion to reopen; changed country conditions guidance)
- Allabani v. Gonzales, 402 F.3d 668 (6th Cir. 2005) (abuse-of-discretion standard for BIA motions to reopen)
- Fang v. Holder, [citation="529 F. App'x 641"] (6th Cir. 2013) (prior denial of Fang’s petition for review of BIA merits decision)
- Vahora v. Holder, 641 F.3d 1038 (9th Cir. 2011) (interpretation of changed-circumstances exception in asylum context)
- INS v. Doherty, 502 U.S. 314 (1992) (motions to reopen are disfavored)
- INS v. Abudu, 485 U.S. 94 (1988) (standards and discretion for motions to reopen)
- Alizoti v. Gonzales, 477 F.3d 448 (6th Cir. 2007) (prima facie showing required for reopening motions)