Chunhua JIANG, aka Long Sheng Jiang, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent, 621 F. App'x 24

SUMMARY ORDER Petitioner Chunhua Jiang, a native and citizen of China, seeks review of a June 21, 2013 order of the BIA, affirming the December 3, 2012 decision of an Immigration Judge (“IJ”)) which denied his motion to reopen as untimely. In re Chunhua Jiang, No. [ AXXX XXX XXX ] (B.I.A. June 21, 2013), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 3, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the IJ’s decision as modified by the BIA, i.e., minus the bases for denying relief that were not relied upon by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the BIA’s decision affirming an IJ’s denial of a motion to reopen for abuse of discretion. Iavorski v. INS, 232 F.3d 124, 128 (2d Cir.2000); see Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam).

An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Jiang’s 2012 motion was untimely because his order of removal became final in 1997. See 8 U.S.C. § 1101(a)(47)(B)(ii).

Jiang contends, however, that the Chinese government’s awareness of his religious activities in the United States, and its corresponding threats, and generally worsened conditions for underground church members in China, constitute materially changed conditions excusing the untimeliness of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

The BIA did not abuse its discretion in finding that Jiang failed to demonstrate a material change in country conditions on the basis of his generalized evidence. “In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.2007).

However, as the BIA observed, Jiang failed to support his motion with any evidence of conditions for underground church members at the time of his 1997 merits hearing. He was therefore unable to demonstrate materially changed conditions on the basis of his generalized evidence. See id. Whether Jiang established materially changed country conditions based on his individualized evidence is a closer question. The BIA found that the government’s awareness of Jiang’s religious activities in the United States, and its corresponding threats, were changes in Jiang’s personal circumstances.

The BIA has not, however, addressed in a precedential decision whether a change that pertains to a particular individual in his home country, as opposed to a general change in policy, is sufficient to establish the “changed country conditions” necessary to excuse the 90-day time limitation on motions to reopen. Nor have we addressed the question in a precedential decision. See, e.g., Chang Fan Zeng v. Holder, 487 Fed.Appx. 643, 644-45 (2d Cir.2012).

Moreover, there is some ambiguity in the statute and regulation, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(2), and other circuits apparently have found changed country conditions based in part on changed personal circumstances. See, e.g., Joseph v. Holder, 579 F.3d 827, 834 (7th Cir.2009); Mei Ya Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1320 (11th Cir.2009). In light of these circumstances, we remand to the BIA. When reviewing a non-precedential BIA decision, we have often remanded so that “the BIA [can] by published opinion interpret a statute it is charged with enforcing.” Dobrova v.

Holder, 607 F.3d 297, 300 (2d Cir.2010); see also Jian Hui Shao v. BIA, 465 F.3d 497, 502-03 (2d Cir.2006). One of the many reasons for this procedure is that “any effort expended by us interpreting the statute would be for nought should the BIA subsequently reach a different, yet reasonable,

interpretation.” Jian Hui Shao, 465 F.3d at 502; see also Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106, 116-17 (2d Cir.2006) (setting forth numerous factors in favor of remand). For the foregoing reasons, the petition for review is GRANTED in part and DENIED in part, and the case is REMANDED to the BIA for further proceedings consistent with this order. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DENIED as moot.

Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).