DONG v. GARLAND (2021)

United States Court of Appeals, Second Circuit.2021-07-08No. 19-1244

Summary · law.co

Holding. The petition for review is denied because the Board of Immigration Appeals did not abuse its discretion in rejecting the motion to reopen as untimely, as the petitioner failed to establish materially changed conditions in China that would trigger the exception to the one-year filing deadline.

A Chinese citizen sought to reopen his removal proceedings by arguing that changed conditions in China—specifically modifications to the country's family planning policy—constituted new evidence supporting an asylum claim based on persecution fears related to his two U.S.-born children. The petitioner filed his motion to reopen more than one year after his removal order, making it untimely under immigration law. A time-bar exception exists for motions based on materially changed country conditions, but only if the evidence is material and was unavailable at the original proceeding. The court examined whether China's loosening of its family planning restrictions to allow two children per couple, combined with continued use of economic incentives and penalties, constituted a material adverse change in circumstances. The court found that the petitioner failed to demonstrate such a material change in country conditions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether relaxation of China's family planning policy constitutes materially changed country conditions
Whether continued enforcement mechanisms for family planning policy demonstrate material change
Application of the one-year deadline exception for motions to reopen asylum proceedings

Procedural posture

Petitioner sought judicial review of a Board of Immigration Appeals decision denying his motion to reopen removal proceedings.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

SUMMARY ORDER

Petitioner Jian Long Dong, a native and citizen of the Peoples Republic of China, seeks review of an April 11, 2019, BIA decision denying his motion to reopen his removal proceedings. In re Jian Long Dong, No. A077 415 473 (B.I.A. Apr. 11, 2019). We assume the parties’ familiarity with the underlying facts and procedural history.

The applicable standards of review are well established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). Petitioner moved to reopen his removal proceedings to present evidence of his claimed fear of persecution based on the births of his two children in the United States purportedly in violation of Chinas population control program.

It is undisputed that Petitioners motion to reopen was untimely because he filed it more than one year after he was ordered removed. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time limitation does not apply if the motion is to reopen proceedings to apply for asylum “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

We find no error in the BIAs determination that Petitioner failed to demonstrate materially changed country conditions related to the enforcement of the family planning policy. See Jian Hui Shao, 546 F.3d at 159-66, 169-73. As the BIA found, Petitioners evidence reflected that the Chinese government had loosened the family planning policy to permit two children per couple beginning January 1, 2016, and that the use of incentives and economic punishments to coerce compliance with the policy continued as it had for years.

Accordingly, because Petitioner did not establish a material adverse change in conditions in China, the BIA did not abuse its discretion in denying his motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c).

For the foregoing reasons, the petition for review is DENIED.