2013 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

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w . v i l l a no v a . e du/thir dc ir c uit_2013/1169NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 2668

___________ XIONG JIAN HUANG , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review o f an Order of the Board of Immigration Appeals

(Agency No. A 77

- 552

- 226 ) Immigration Judge: Honorable Donald Vincent Ferlise

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) February 20, 2013 Before: FUENTES, HARDIMAN and VAN ANTWERPEN , Circuit Judges (Opinion filed : March 4, 2013 )

___________

OPINION

___________ PER CURIAM Xiong Jian Huang is a citizen of China who entered the United States without inspection in 1998 . He fil ed an application for asylum, withholding of removal and protection under the United Nations Convention Against Torture , alleging persecution2 under China’s coercive population control policies. Following a merits hearing in 2002,
t he Immigration Judge (“IJ”) denied relief based in part on an adverse credibi lity determination. In December 2003, th e Board of Immigration Appeals (“BIA” or “Board” ) affirmed without opinion. Huang next filed a motion for reconsideration, which the BIA denied as untimely

. In October 2011, Huang file d a motion to reopen, asserti ng that he began practicing Christianity in 2010 and that he will be persecuted in China because of his religious beliefs. The Board concluded that the motion to reopen was untimely. The BIA als o held that the evidence Huang submitted with his motion to reopen “is not sufficient to demonstrate that the treatment of members of unregistered Christian churches in China has materially changed, that the Chinese government is or will become aware of his newly adopted religious practice, or that he will become a specific target for persecution in China on the basis of his Christian beliefs.” Finally, the BIA refused to consider Huang’s challenge to the IJ’s original adverse credibility determination, rejected Huang’s allegations of ineffective assistance of coun sel, a nd declined to exercise its sua sponte authority to reopen the proceedings. 1

1 Huang has not challenged these determinations. Bradley v. Att’y Gen. , 603 F.3d 235, 243 n.8 (3d Cir. 2010) (holding that argument s not raised in opening brief a re waived). He does suggest, however, that the Board improperly discounted evidence submitted with his motion to reopen based on the prior adverse credibility finding. It is clear, though, that the adverse credibility determination was not a factor in th e Board’s evaluation of the evidence allegedly demonstrating changed conditions in China. Accordingly, the BIA denied the motion to reopen. Huang filed a timely petition for review.3 We have jurisdiction pursuant to 8 U.S.C. § 1252

. The decision to deny a moti on to reopen is reviewed f or abuse of discretion. Oliva

- Ramos v. Att’y Gen

. , 694 F.3d 259 , 270 (3d Cir. 2012). Under this standard, the BIA’s decision may be reversed 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 it with the
BIA “within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i ) ; see also 8 C.F.R. § 1003.2(c)( 2). Huang’s motion to reopen, filed almost 8 years after the BIA entered the final remova l order, was clearly untimely. The time limitation does not apply to motions to reopen that rely on evidence of “changed country conditions arising i n the country of nationality . . . 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)

. Thus, Hu ang would be eligible to file an untimely asylum application in reopened proceedings based on his Christian faith, if he is able to show changed country conditions since the time of his hearing before the IJ

. 2 Filja v. Gonzales , 447 F.3d 241, 251

- 52 (3d Cir. 2006).

2 Huang does not dispute that his conversion to Christianity was a change i n his personal circumstance, rather than a change in country conditions that would suppor t reopening. See Khan v. Att’y Gen. , 691 F.3d 488, 497

- 98 (3d Cir. 2012) (stating that the “choice to engage in [certain] political activities after being ordered deported does not support application of the changed c ountry conditions exception”).4 Huang complains th at the Board failed to adequately consider and weigh the evidence that he submitted. But he does not cite specifically any overlooked evidence potentially showing changed country conditions . Moreover, as discussed below, after reviewing the record, we ar e satisfied that the B IA properly identified his evidence, sufficiently described its contents, and explained why it does not demonstrate that country conditions have materially changed. Huang v. Att’y Gen. , 620 F.3d 372, 387 (3d Cir. 2010) ( “The BIA must show that it reviewed the record and considered the evidence upon which the IJ relied, and it must explain why the record warrants [its conclusion].” ). The Board did not abuse its d iscretion in determining that Huang did not qualify for the changed count ry conditions exception to the time requirement for filing a motion to reopen . In support of his motion to reopen, Huang submitted , inter alia, a personal affidavit, a letter from his wife , and a Village Committee notice that wa s sent to his wife

. The BI A properly concluded that this material was not “persuasive evidence of materially ‘changed circumstances’ in China regarding religion.” Although Huang’s affidavit s tated that he “would be punished more seriously and would be sent to jail” because of the religious material that he attempted to send to his wife in China , his allegation is speculative and it is unclear whether the punishment that he allegedly faces amounts to persecution. Similarly, the letter from Huang’s wife, which is unsworn, is based s olely on speculation that Huang will be “arrested, jailed, sentenced[,] and further persecuted” if he returns to China. T he Village Committee notice suggests that the Chinese government is aware of Huang’s newly

- adopted religious practice, but the notice is unauthenticated5 and states only that Huang “will be punished” because he “tried to mail back to China some untrue reports” regarding religio us persecution. T he BIA did not err in refusing to credit this evidence. Chen v. Gonzales , 434 F.3d 212, 218 (3 d Cir. 2005) (noting that only corroboration was a letter from a family member who did not witness incident and who was not subject to cross examina tion).
We also agree that Huang’s evidence is insufficient to establish that conditions had worsened in Chi na for Christians since the time of his merits hearing in 2002. Huang’s motion to reopen relied in part on the 2007 State Department’s Profile of Asylum Claims and Conditions in China, which stated that the “[p]olice have closed many unregistered churches ,” and that in some areas “local security officials use threats, demolition of unregistered property, interrogation, arrest, imprisonment, and sometimes severe physical abuse to target unregistered religi ous leaders and their followers.” Importantly, howe ver, evidence in the record from Huang’s 2002 merits hearing suggested that harassment and repression of unregistered churches was already prevalent. For example, the 1998 State Department Profile of Asylum Claims and Con ditions in China indicated that “[ u]nregistered religious activity is illegal and is a punishable offense,” that since 1994 the police have stepped up a campaign to require all r eligious groups to register , and that in 1996 the “central Government released a policy directive that launched a national campaign to suppress unauthorized religious groups and social organizations.” In sum, we conclude that no reasonable factfinder would be compelled to find that there has been a material worsening since 2002 of human rights abuses committed aga inst Christians in6 China. For the foregoing reasons, we will deny the petition for review.