2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

8-1-2011 

# T a shi G ya m t so v

. Att y Ge n U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 11-1760

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2011

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2011 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" T ashi G ya m ts o v

. Att y Ge n U SA" (2011). 2011 D e cisio n s . P a pe r 732. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2011/732NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1760

___________ TASHI GYAMTSO ,

Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________ On Petition fo r Review of an Order of the Board of Immigration Appeals ( Agency N o. A 0 98

- 586

- 979 ) Immigration Judge: Honorable Eugene Pugliese

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

August 1, 2011 Before: RENDELL, CHAGA RES AND ALDISERT, Circuit Judges

(Opinion filed : August 1, 2011 )

___________ OPINION

___________ PER CURIAM Gyamtso Tashi petitions for review of an or der of the Board of Immigration Appeals (“BIA” or “Board”) denying his motion to reopen. For the reasons that follow, we will grant the petition for review and remand the case for further proceedings consistent with this opinion.2 I. Gyamtso entered the United States in November 2003, presenting himself as Ngawang Bhutia, an Indian citizen with a valid Indian passport and B

- 1 tourist visa. Less than a year later, Gyamtso filed an application for asylum, claiming that his Indian
passp ort and tourist visa were obtained by fraud and that he was Tashi Gyamtso, a Tibetan n ative and citizen of the People’ s Republic of China seeki ng refuge in the United
States. He alleged that he fled to India from Tibet with his wife and three children bec ause he was persecuted for advocating freedom of religion and freedom from Chinese rule. In November 2004, the De partment of Homeland Security (“DHS” ) issued a Notice to Appear , charging Gyamtso with being subject to removal under I mmigration and Natio nality Act § 237(a)(1)(A), for arriving in the United States without an immigrant visa or other valid travel documents. Gyamtso admitted the cha rges and conceded removability. In December 2005, following a n administrative hearing, the Immigr ation Judge ( “IJ”) denied Gyamtso’ s applications for relief and ordered him removed to India. The IJ made an adverse credibility ruling based on discrepancies between Gyamtso’s hearing testimony and his supplementary I

- 589 statement. He also determined that Gyamtso w as an Indian citizen based on the authentic Indian passport,
and also because he f

ailed to prove his identity as a Tibet an native and citizen of China.
T he BIA adopted and affirmed the IJ’ s decision and dismissed the appeal. Gyamtso filed a timely peti tion for review of that determination, which we denied. See3

Gyamtso v. Att’y Gen. , 296 F. App’x 235 (3d Cir. 2008). In doing so, we affirmed the agency’s adverse credibility determination. We also concluded that substantial evidence supported the agency ’s finding that Gyamtso is a citizen of India, which was dispositive of Gyamtso’ s asylum claim

. In May 2010, Gyamtso, through counsel, filed with the BIA a motion to reopen the proceedings. Gyamtso acknowledged that his motion was untimely, but argued th e existence of changed country conditions in Tibet since he was ordered removed, and also the existence of previously unavailable, material evidence, demonstrating that he is native of Tibet and citizen of China. ( See Administrative Record (“A.R.”) at 17

- 18, 20

- 21 .) The evidence included: 1) an arrest warrant for Gyamtso d ated August 7, 2001; 2) a December 2005 letter f

rom the Tibetan Welfare office stating that Gyamtso “is a bonafide Tibetan resident;” 3) the affidavit o f Gyamtso’s wife describing event s occurring in 2001; 4) a January 2010 letter from the Lithang Welfare Association of Brooklyn, New York, asserting that Gyamtso “is a bonafide Tibetan; ” 5) four statements from individuals claiming that Gyamtso is a Tibetan ; 6) Gyamtso’s affidavit ; 7) the U.S. Department of State’s 2008 Human Rights Report on China; and 8) two articles describing current conditions in Tibet. (Id. at 44

- 148.) The BIA denied the motion. The Board first stated that despite Gyamtso’s continued protestation that he a Tibeta n native and Chinese citizen, this Court previously concluded that substantial evidence supported the agency’s determination that he is a
citizen of India. ( Id. at 3

- 4 .) The Board then determined that the evidence that Gyamtso4

presented concerning his cl aimed identity was either previously available, or could not be authenticated. ( Id. ) Finally, the Board stated that Gyamtso’s purported evidence of changed country conditions in Tibet, which included the 2008 Human Rights Report, failed to demonstrate ch anged circumstances in China which would “materially affect” Gyamtso’s eligibility for asylum or withholding of removal. ( Id. ) Gyamtso, proceeding pro se, filed a timely petition for review.
II. In order to succeed on a motion to r eopen, an alien must, among other things, establish a prima facie case for the relief sought. Guo v. Ashcroft , 386 F.3d 556, 562 (3d Cir. 2004). We review the BIA’s denial of such a motion under an abuse of discretion
standard. Id. at 562. Under that s tandard, the BIA ’ s decision warrants reversal only if it is arbitrary, irrational, or contrary to law. Id. Generally, a motion to reopen must be filed no later than ninety days after the date on which the final administrative decision was rendered in t he proceeding sought to be reopened. See 8 C.F. R. § 1003.2(c)( 2). In addition, petitioners are typically barred from filing more than one motion to reopen. Id. However, the time and numerical limitations do not apply to motions to reopen to apply or r eapply for asylum or withholding of removal based on changed circumstances 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 pres ented at the previous proceeding.
See 8 C.F.R. § 1003.2(c)(3)(ii).5 III. As mentioned, Gyamtso admitted that his motion was untimely, but filed it pursuant to § 1003.2(c)(3)(ii). However, the Board does not appear to have reviewed
G yamtso’s motion pursuant to the requirements of that regulation. Instead, for reasons which are unclear, the Board analyzed whether the evidence that Gyamtso’s presented with his motion demonstrated changed conditions in China, rather than in India, the country to which he was ordered removed. The Board also reviewed whether Gyamtso’s purported new evidence regarding his claimed identity provided a sufficient basis for reopening, determining that it did not because the evidence was previously available or could not be authenticated. However, the question of Gyamtso’s citizenship was settled previously and, in any event, that information does not appear to speak to the requirements of § 1003.2(c)(3)(ii)

. For those reasons, we will grant the petition for review and remand the case for further proceedings consistent with this opinion. We express no opinion as to the ultimate outcome of the case.