IMG-018 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1954

___________

XINWANG YANG,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A72-993-689)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 3, 2012

Before: FUENTES, JORDAN AND VAN ANTWERPEN, Circuit Judges

(Opinion filed: January 11, 2012)

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OPINION

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PER CURIAM

Xinwang Yang petitions for review of an order of the Board of Immigration 

Appeals (“BIA”) denying his second motion to reopen. For the reasons that follow, we 

will deny the petition. 
Yang is a citizen of the People’s Republic of China who entered the United States 

in April 1995. Shortly thereafter, Yang was served with an order to show cause why he 

should not be deported pursuant to former Immigration and Nationality Act (“INA”) 

§ 241(a)(1)(B) [8 U.S.C. § 1251(a)(1)(B)]. He conceded deportability, and applied for 

asylum, withholding of deportation, and relief under the Convention Against Torture 

(“CAT”), claiming that he was persecuted under China’s coercive family planning 

policies. The Immigration Judge (“IJ”) denied relief, finding that Yang was not credible,

in part because he testified that he had asked his family in China to prepare fraudulent 

documents. The BIA dismissed Yang’s appeal in 2003, concluding that the adverse 

credibility determination was supported by substantial evidence. We denied Yang’s

petition for review. Yang v. Att’y Gen., 123 F. App’x 92 (3d Cir. Mar. 4, 2005). In 

2006, Yang filed a motion to reopen, based primarily on alleged ineffective assistance of 

counsel. The BIA denied the motion as untimely, and we denied Yang’s subsequent

petition for review. See Yang v. Att=y Gen., 294 F. App’x 718 (3d Cir. Oct. 1, 2008). 

In May 2010, Yang filed his second motion to reopen “based on changed country 

conditions, newly discovered and previously unavailable evidence[,] and changes of the 

case law and my personal circumstances.” In particular, Yang claimed that he formally 

joined the China Democracy Party (“CDP”) in 2007, that he “participated in many 

demonstrations in New York and Washington, D.C.,” and that his “name and [his] 

pictures are published all over the Internet.” According to Yang, Chinese authorities 

discovered his participation in the CDP and “went to my home in China and threatened 

my wife and my parents.” Yang supported these assertions with a personal affidavit,
letters from his wife and a friend, and background material concerning the CDP and 

conditions in China.1 

The BIA denied the motion to reopen as both time-barred and number-barred, 

holding that Yang “has not met his burden of establishing, with sufficiently reliable 

evidence, that there are material changed conditions so as to” create an exception to those 

limitations. 8 C.F.R. § 1003.2(c)(3)(ii). The Board noted that Yang’s motion was

“primarily based on his political activity here in the United States.” With respect to 

conditions in China, the BIA concluded that Yang’s evidence did not “show[] a material 

change in how members of pro-democracy groups are treated as compared with the time 

of [his] last hearing, which was in April 2002.” Instead, the BIA held that Yang’s “new 

evidence demonstrates a continuation of conditions for political activists . . . .” Referring 

to Yang’s affidavit and the letters from his wife and friend, the Board concluded that 

Yang “has not adequately demonstrated that Chinese officials are harassing and 

threatening his family members based on his United States political activities, even 

assuming this would constitute material changed conditions arising in China.” Finally, 

the BIA ruled that Yang had not shown an “exceptional situation” that would warrant sua 

sponte reopening. Yang filed a timely petition for review of the BIA’s decision. 

We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252]. We review the 

 

1

In addition to seeking reopening, Yang argued that he should be permitted to file a 

successive asylum application under Immigration and Nationality Act (“INA”) 

§ 208(a)(2)(D) [8 U.S.C. § 1158(a)(2)(D)]. We have held, however, that an alien who

has been ordered removed may not file an untimely or successive asylum application 

based on changed personal conditions, unless he can also show changed country 

conditions in his motion to reopen. Liu v. Att’y Gen., 555 F.3d 145, 150-51 (3d Cir. 
denial of a motion to reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 

251 (3d Cir. 2006). Under this standard, we may reverse the BIA’s decision only if it is 

“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d 

Cir. 2002). 

An alien generally may file only one motion to reopen, and must file the motion 

with the BIA “no later than 90 days after the date on which the final administrative 

decision was rendered.” 8 C.F.R. § 1003.2(c)(2). Yang’s motion to reopen is clearly 

time- and number-barred. The time and number requirements do not apply to motions 

that rely on evidence of “changed country conditions,” INA § 240(c)(7)(C)(ii) [8 U.S.C. 

§ 1229a(c)(7)(C)(ii)], or “changed circumstances arising in the country of nationality . . . 

if such evidence is material and was not available and could not have been discovered or 

presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The term “previous 

hearing” in § 1003.2(c)(3)(ii) refers to the proceedings before the IJ. Filja, 447 F.3d at

252.

We agree with the BIA that Yang’s CDP membership in the United States is a 

change in his personal circumstance, not a change in country conditions that would 

support reopening. See Liu, 555 F.3d at 150-51; see also Liu v. Holder, 560 F.3d 485, 

492 (6th Cir. 2009) (holding that “membership and participation in the CDP and its 

activities in the United States . . . demonstrated a change in [Petitioner’s] personal 

circumstances but did not demonstrate changed country conditions in China.”). Yang

does not appear to challenge this finding, but argues that he “met his burden to reopen 

 

2009).
based on changes [in] country conditions and changes [in] his hometown since his last 

hearing in 2002 before the immigration court.” We disagree.

At the time of Yang’s previous hearing, the latest country conditions evidence in 

the record (from the 1995 Country Report) indicated that in China there “continued to be 

widespread and well-documented human rights abuses,” that “challenges to [the Chinese 

government’s] political authority are often dealt with harshly and arbitrarily,” and that 

“Chinese leaders moved swiftly to cut off organized expression of protest or criticism 

. . . .”2 In support of his motion to reopen, Yang submitted the State Department’s 2008 

Country Reports on Human Rights Practices. That Report stated that “[d]uring the year”

China “increased detention and harassment of dissidents and petitioners.” But, as the 

BIA properly concluded, “the document as a whole does not show a meaningful change 

in conditions since the 2002 hearing.” Indeed, the Report stated that the Chinese 

“government continued to monitor, detain, and imprison current and former CDP 

members.” (emphasis added). Therefore, we agree that the background evidence failed to 

demonstrate a material change in the treatment of members of pro-democracy political 

groups since the 2002 proceedings before the IJ.

 

2 Although Yang’s “previous hearing” occurred in 2002, he did not supply any 

background material from that time in his motion to reopen. He has now filed a motion 

to supplement the record with the 2002 State Department Country Report on Human 

Rights Practices in China and a “corrected translation” of a letter from Yang’s friend. 

The Government opposes this motion, and has moved to strike portions of Yang’s brief 

which rely on the non-record evidence. We will deny Yang’s motion because our review 

is limited to the record that was before the agency when it issued the decision under 

review. See INA § 242(b)(4)(A) [8 U.S.C. § 1252(b)(4)(A)]. Therefore, we will not 

consider this evidence, or any arguments which rely on it. Wong v. Att’y Gen., 539 F.3d 

225, 234 n.4 (3d Cir. 2008). 
We also conclude that Yang’s affidavit and the letters from his wife and friend do 

not sufficiently establish a change in country conditions. The Board questioned the 

authenticity of this evidence. For instance, the BIA noted that Yang, who asserted that he 

has lived in Florida since March 2006, failed to explain in his affidavit why his political 

activities took place in New York and Washington, D.C. In addition, the Board 

“decline[d] to give significant weight to the letter” from Yang’s wife, in part because it 

“came from an interested witness who is not subject to cross-examination” and failed to 

indicate when the Chinese officials came to her house. The BIA also questioned the 

authenticity of a letter signed by someone identifying himself as Yang’s “[f]riend,” which 

asked, “[h]ow are you doing brother,” and stated that the “government and the Board 

Security sen[t] a group of people to our house.”3 (emphasis added). 

Yang argues that these discrepancies are the result of translation errors, incorrect 

assumptions about the meaning of the term “brother,” and misperceptions about his 

ability to travel out of state to participate in political activities. Even accepting the 

authenticity of this evidence, however, we conclude that the BIA properly determined 

 

3

The Board also noted that it had “considered [Yang’s] . . . prior admissions concerning 

his attempts to secure false documents to support an asylum claim.” Yang argues that the 

IJ’s prior adverse credibility finding is not relevant to the authenticity of the documents 

he submitted in support of his motion to reopen. See Guo v. Ashcroft, 386 F.3d 556, 562 

(3d Cir. 2004) (stating that an IJ “must justify each adverse credibility finding with 

statements or record evidence specifically related to the issue under consideration.”).

Although “one adverse credibility finding [does not] beget another,” id., the BIA did not 

run afoul of this rule here. Citing Guo, the Board stated that it “agree[d] with [Yang] that 

. . . a prior adverse credibility finding is not sufficient to justify denial of all subsequent 

applications . . . .” Moreover, to the extent that the BIA relied on Yang’s prior attempt to 

obtain fraudulent documents, that was merely one of several factors leading the Board to
that it failed to demonstrate a material change in China’s treatment of CDP members. 

The affidavit and letters establish that Chinese government officials went to Yang’s 

house and his daughter’s school, accused him of participating in pro-democracy activities 

in the United States, and threatened to imprison him if he returned to China. At bottom, 

however, the actions of the Chinese government officials do not sufficiently establish the 

type of “changed country conditions” contemplated by INA § 240(c)(7)(C)(ii). 

In sum, because the record does not compel the conclusion that conditions facing

CDP members who return to China had changed materially since the time of Yang’s 2002

proceedings before the IJ, the BIA did not abuse its discretion in denying the motion to 

reopen. Furthermore, the Board’s decision not to sua sponte reopen the proceedings is 

unreviewable. Cruz v. Att’y Gen., 452 F.3d 240, 249 (3d Cir. 2006). Accordingly, we 

will deny the petition for review. Yang’s motion to supplement the record and the 

Government’s motion to strike are denied. 

 

question the authenticity of Yang’s affidavit and the letters.