2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-4-2013

Xiong Huang v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2668

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NOT PRECEDENTIAL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 of an Order of the

Board of Immigration Appeals

(Agency No. A77-552-226)

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 filed an application for asylum, withholding of removal and 

protection under the United Nations Convention Against Torture, alleging persecution 
2

under China’s coercive population control policies. Following a merits hearing in 2002, 

the Immigration Judge (“IJ”) denied relief based in part on an adverse credibility 

determination. In December 2003, the 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 filed a motion to reopen, asserting 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 

also 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 counsel, and 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 arguments not raised in opening brief are

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 the 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 motion 

to reopen is reviewed for 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 removal order, was clearly untimely. 

The time limitation does not apply to motions to reopen that rely on evidence of

“changed country conditions arising in 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, Huang 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 in his 

personal circumstance, rather than a change in country conditions that would support 

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 country conditions exception”).
4

Huang complains that 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 are satisfied that the BIA 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 discretion in determining that Huang did not qualify 

for the changed country 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 was sent to his wife. 

The BIA properly concluded that this material was not “persuasive evidence of materially 

‘changed circumstances’ in China regarding religion.” Although Huang’s affidavit stated

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 solely 

on speculation that Huang will be “arrested, jailed, sentenced[,] and further persecuted” if 

he returns to China. The Village Committee notice suggests that the Chinese government 

is aware of Huang’s newly-adopted religious practice, but the notice is unauthenticated 
5

and states only that Huang “will be punished” because he “tried to mail back to China 

some untrue reports” regarding religious persecution. The BIA did not err in refusing to 

credit this evidence. Chen v. Gonzales, 434 F.3d 212, 218 (3d 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 examination).

We also agree that Huang’s evidence is insufficient to establish that conditions had 

worsened in China 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 religious leaders and their followers.” Importantly, however, 

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 Conditions 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 religious 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 against Christians in 
6

China.

For the foregoing reasons, we will deny the petition for review.