Jiang v. Barr BIA A200 939 375

17-4071
Jiang v. Barr
BIA
A200 939 375

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 23
rd
day of January, two thousand twenty. 4
5
PRESENT: 6
JON O. NEWMAN, 7
JOHN M. WALKER, JR., 8
Circuit Judges.
1
9
_____________________________________ 10
11
WEI HUA JIANG, 12
Petitioner, 13
14
v. 17-4071 15
NAC 16
WILLIAM P. BARR, UNITED STATES 17
ATTORNEY GENERAL, 18
Respondent. 19
_____________________________________ 20
21
FOR PETITIONER: Gary J. Yerman, New York, NY. 22
23
FOR RESPONDENT: Chad A. Readler, Acting Assistant 24
Attorney General; Melissa Neiman-25
Kelting, Assistant Director; Sara 26

1
Judge Christopher F. Droney, who was originally assigned to the panel, retired
from the Court, effective January 1, 2020, prior to the resolution of this case.
The remaining two members of the panel, who are in agreement, have determined
the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); United States v. Desimone,
140 F.3d 457, 458–59 (2d Cir. 1998).

2

J. Bayram, Trial Attorney, Office 1
of Immigration Litigation, United 2
States Department of Justice, 3
Washington, DC. 4
5
UPON DUE CONSIDERATION of this petition for review of a 6
Board of Immigration Appeals (“BIA”) decision, it is hereby 7
ORDERED, ADJUDGED, AND DECREED that the petition for review 8
is DENIED. 9
Petitioner Wei Hua Jiang, a native and citizen of the 10
People’s Republic of China, seeks review of a December 4, 11
2017, decision of the BIA denying Jiang’s motion to reopen 12
his removal proceedings. In re Wei Hua Jiang, No. A 200 939 13
375 (B.I.A. Dec. 4, 2017). We assume the parties’ 14
familiarity with the underlying facts and procedural history 15
in this case. 16
We review the denial of a motion to reopen for abuse of 17
discretion and the BIA’s country conditions determination for 18
substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 19
138, 168-69 (2d Cir. 2008). An alien seeking to reopen may 20
file one motion to reopen no later than 90 days after the 21
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), 22
(C)(i); 8 C.F.R. § 1003.2(c)(2). It is undisputed that 23

3

Jiang’s motion to reopen filed in 2017 was untimely because 1
it was filed more than four years after the 2012 final 2
administrative decision. See 8 U.S.C. § 1229a(c)(7)(C)(i); 3
8 C.F.R. § 1003.2(c)(2). This time limitation is excused if 4
the motion is filed in order to apply for asylum “based on 5
changed country conditions arising in the country of 6
nationality or the country to which removal has been ordered, 7
if such evidence is material and was not available and would 8
not have been discovered or presented at the previous 9
proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 10
8 C.F.R. § 1003.2(c)(3)(ii). Substantial evidence supports 11
the agency’s conclusion that Jiang’s evidence was 12
insufficient to establish a material change in conditions in 13
his home province of Fujian. 14
The country conditions evidence reveals that the Chinese 15
government’s treatment of Christians has remained consistent 16
since Jiang’s 2011 hearing. See In re S-Y-G-, 24 I. & N. 17
Dec. 247, 253 (BIA 2007) (“In determining whether evidence 18
accompanying a motion to reopen demonstrates a material 19
change in country conditions that would justify reopening, 20
[the agency] compare[s] the evidence of country conditions 21

4

submitted with the motion to those that existed at the time 1
of the merits hearing below.”). The United States has 2
designated China as a “Country of Particular Concern” under 3
the Religious Freedom Act since 1999. The record 4
demonstrates that since at least 2011, Christians attending 5
unauthorized churches in certain areas in China have faced 6
repression. 7
As evidence that conditions have worsened, Jiang cites 8
2016 reports for the proposition that “the Chinese government 9
has a strong will to promote ‘Sinicization’ of house churches 10
and religious activities.” This statement, however, does not 11
demonstrate an increase in persecution because it does not 12
connect the new policy to incidents of harm amounting to 13
persecution or changed treatment of Christian worshippers. 14
See 8 U.S.C. § 1229a(c)(7)(C)(ii) (requiring material change 15
in conditions); In re S-Y-G-, 24 I. & N. Dec. at 257 (“Change 16
that is incremental or incidental does not meet the regulatory 17
requirements for late motions of this type.”). 18
Moreover, even though the Chinese government announced a 19
Sinicization policy, and even if the persecution of 20
Christians increased in some areas of China, Jiang’s evidence 21

5

did not show an increase in persecution in his home province, 1
Fujian. When conditions vary throughout a country, an 2
applicant is required to show a material change in conditions 3
in his area. See Jian Hui Shao, 546 F.3d at 170 (reasoning 4
that, when policies “vary widely from one area of the country 5
to another . . . . it is appropriate to review the evidence 6
to determine, first, what policy applies to the circumstances 7
at issue and, second, whether local officials would be 8
inclined to view the petitioner’s actions as a violation of 9
that policy”). However, the only new evidence that Jiang 10
cites regarding persecution of Christians in Fujian Province 11
describes demolitions of unregistered churches. Given his 12
2011 evidence that the Chinese government pressured 13
unregistered churches to affiliate with patriotic religious 14
associations, Jiang’s new evidence demonstrates not an 15
increase in subjugation of Christian groups but rather a 16
continuation of a decades-long government effort to control 17
religious doctrine, repress unsanctioned religious groups, 18
and crack down on religious growth. See In re S-Y-G-, 24 I. 19
& N. Dec. at 257. 20
21

6

Therefore, because the agency reasonably concluded that 1
Jiang’s evidence failed to demonstrate a material change in 2
conditions as needed to excuse the untimely filing of his 3
motion, the agency did not abuse its discretion in denying 4
his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C). 5
Because this finding is dispositive, we do not reach the 6
agency’s alternative finding that Jiang failed to establish 7
his prima facie eligibility for relief. See INS v. 8
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts 9
and agencies are not required to make findings on issues the 10
decision of which is unnecessary to the results they reach.”). 11
For the foregoing reasons, the petition for review is 12
DENIED. As we have completed our review, any stay of removal 13
that the Court previously granted in this petition is VACATED, 14
and any pending motion for a stay of removal in this petition 15
is DISMISSED as moot. Any pending request for oral argument 16
in this petition is DENIED in accordance with Federal Rule of 17
Appellate Procedure 34(a)(2), and Second Circuit Local Rule 18
34.1(b). 19
FOR THE COURT: 20
Catherine O’Hagan Wolfe, 21
Clerk of Court 22