Yang Zhao-Cheng v. Holder
2013 U.S. App. LEXIS 15864
| 1st Cir. | 2013Background
- Zhao-Cheng Yang, a Chinese national, was placed in exclusion proceedings after an attempted unlawful entry to the U.S.; his 1998 asylum application was denied and his appeal dismissed in 2000 for failure to file a brief.
- Yang remained in the U.S. and in 2012 filed a motion to reopen, untimely under the 90-day rule, invoking the regulatory exception for motions based on changed country conditions affecting eligibility for asylum.
- Yang asserted he converted to Christianity in 2011 and claimed that persecution of unregistered (house) churches in China had worsened since his 1998 hearing, so he would face persecution if returned.
- He submitted evidence (Human Rights Watch and State Department reports and later-year materials documenting detentions and beatings of unregistered church members) but did not submit full State Department reports for all years he referenced.
- The BIA found Yang failed to demonstrate changed country conditions between 1998 and 2012 and therefore denied the untimely motion to reopen; the BIA also declined administrative notice of the full State Department reports Yang had not submitted.
- The First Circuit reviewed for abuse of discretion and denied Yang’s petition for review, concluding the BIA reasonably determined Yang had not carried the burden to show changed circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Yang’s motion to reopen qualifies for the exception to the 90‑day time limit based on changed country conditions | Yang: persecution of unregistered Christian groups in China increased since 1998, so the motion is timely under the changed‑circumstances exception | Government: Yang failed to prove that country conditions in 2012 were materially different from 1998; thus the exception does not apply | BIA and First Circuit: Yang failed to meet burden to show changed country conditions; denial of motion to reopen affirmed |
| Whether the BIA abused its discretion by declining to take administrative notice of full State Department reports Yang selectively quoted | Yang: selective quotation obligates BIA to take notice of the full reports (which are publicly available) | Government: petitioner bore the burden to submit evidentiary material; BIA not required to take notice and permissibly declined | BIA and First Circuit: no abuse of discretion in refusing to take administrative notice; petitioner must submit the evidence himself |
Key Cases Cited
- Romer v. Holder, 663 F.3d 40 (1st Cir.) (standard of review for motions to reopen is abuse of discretion)
- Larngar v. Holder, 562 F.3d 71 (1st Cir.) (burden rests on movant to establish changed country conditions)
- Kaihua Huang v. Holder, [citation="312 F. App'x 420"] (2d Cir.) (BIA may take administrative notice of official documents but is not compelled to do so)
- Hoxhallari v. Gonzales, 468 F.3d 179 (2d Cir.) (courts treating administrative‑notice limits and BIA discretion)
- Gi Kuan Tsai v. Holder, [citation="505 F. App'x 4"] (1st Cir.) (BIA need not address prima facie asylum eligibility when timeliness exception not met)