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Zhao-Cheng v. Holder

United States Court of Appeals, First Circuit

August 1, 2013

YANG ZHAO-CHENG, Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General, Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Scott Bratton and Margaret Wong & Associates Co., LPA on brief for petitioner.

Katherine A. Smith, Office of Immigration Litigation, Civil Division, Department of Justice, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Derek C. Julius, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Torruella and Lipez, Circuit Judges.

LYNCH, Chief Judge.

Zhao-Cheng Yang, [1] a native and citizen of the People's Republic of China, was denied asylum and was ordered excluded in 1998. He did not leave. In 2012, he sought to reopen proceedings on the basis of changed circumstances arising in his country of nationality. He now petitions for judicial review of an order from the Board of Immigration Appeals (BIA) denying his motion to reopen. Because the BIA did not abuse its discretion in determining that Yang failed to demonstrate changed country circumstances, it was not an abuse of discretion for the BIA to deny his motion to reopen, and, accordingly, we deny his petition for review.

I. Background

As a teenager in China, Yang was expelled from school after protesting the school-attendance fee. Believing that he had no future in China, and fearing that his actions and presence would expose his parents to harassment, Yang hired a smuggler to take him out of China unlawfully and to bring him to the United States. Yang attempted to enter the United States in 1996. He was denied admission and was placed in exclusion proceedings.[2]

In 1997, Yang filed an asylum application, claiming that, because he had left China unlawfully, if he returned, he could face corporal punishment, fines, and incarceration. He also claimed that he feared returning because of the Chinese government's forced family-planning policies. In 1998, an Immigration Judge (IJ) denied Yang's asylum application. Yang appealed to the BIA, but the appeal was dismissed on December 8, 2000, because Yang failed to file a brief in support of his appeal.

In 2012, Yang filed with the BIA a motion to reopen proceedings. A motion to reopen generally must be filed within ninety days of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2), (3). The final administrative decision in this case was the dismissal of Yang's appeal on December 8, 2000, twelve years before he filed his motion to reopen. Yang contended that his motion was not subject to the ninety-day rule because 8 C.F.R. § 1003.2(c)(3)(ii) permits the filing of a motion to reopen more than ninety days after the final administrative decision if the motion is brought to reapply for asylum based on changed circumstances arising in the country of nationality, and if the movant has material evidence that was not available and could not have been discovered or presented at the previous hearing.

Specifically, Yang claimed that he had converted to Christianity in 2011 and that, since the time of his 1998 hearing, circumstances surrounding the practice of Christianity in China had changed -- namely, persecution of unregistered[3] Christian groups had increased. Yang asserted that he would continue, on return to China, to practice his religion by attending an unregistered "house" church and by spreading the gospel to others. He would not attend a registered, government-sanctioned church because he does not believe that such churches truly teach religion. In light of the Chinese government's persecution of unregistered-church members, he asserted he would face a constant threat of punishment.

The BIA determined that Yang had failed to establish changed circumstances in China, [4] and so his untimely motion did not qualify for the exception to the ninety-day rule. Accordingly, the BIA denied the motion to reopen. This petition for review followed.

II. Discussion

"We review the denial of a motion to reopen for abuse of discretion." Romerv.Holder, 663 F.3d 40, 42 (1st Cir. 2011). Yang argues it was an abuse of discretion for the BIA to conclude that he had failed to ...


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