20-284 Jiang v. Garland BIA A087 643 159 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 20th day of October, two thousand twenty- 5 two. 6 7 PRESENT: 8 PIERRE N. LEVAL, 9 RICHARD C. WESLEY, 10 RICHARD J. SULLIVAN, 11 Circuit Judges. 12 _____________________________________ 13 14 XIA JIN JIANG, 15 Petitioner, 16 17 v. 20-284 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Margaret W. Wong, Margaret Wong & 25 Associates LLC, Cleveland, OH. 26 27 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 28 Assistant Attorney General; Linda 29 S. Wernery, Assistant Director, 1 Monica M. Twombly, Trial Attorney, 2 Office of Immigration Litigation, 3 United States Department of 4 Justice, Washington, DC.

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED that the petition for review

8 is DENIED.

9 Petitioner Xia Jin Jiang, a native and citizen of the

10 People’s Republic of China, seeks review of a December 27,

11 2019 decision of the BIA denying her motion to reopen her

12 removal proceedings. See In re Xia Jin Jiang, No. A087 643

13 159 (B.I.A. Dec. 27, 2019). We assume the parties’

14 familiarity with the underlying facts and procedural history.

15 Our review is limited to the BIA’s denial of the motion

16 to reopen removal proceedings, see Kaur v. BIA,

,

17 233 (2d Cir. 2005), which we review for abuse of discretion,

18 see Ali v. Gonzales,

(2d Cir. 2006). We

19 find no abuse of discretion here.

20 It is undisputed that Jiang’s motion filed in 2018 was

21 untimely because she filed it six years after her final order

22 of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day

23 deadline for motion to reopen);

(c)(2)

2 1 (same). She argues that the BIA should have excused the

2 deadline because her former counsel was ineffective and

3 because conditions in China for Falun Gong practitioners,

4 Christians, and Jehovah’s Witnesses had worsened since the

5 time of her hearing before an immigration judge. While

6 ineffective assistance and changed conditions implicate

7 exceptions to the filing deadlines, the BIA did not err in

8 rejecting these arguments, which we address in turn.

9 An applicant who demonstrates ineffective assistance of

10 counsel may be entitled to equitable tolling of the deadline

11 for a motion to reopen, see Rashid v. Mukasey,

,

12 130–31 (2d Cir. 2008), but to establish ineffective

13 assistance, the applicant must show that her “counsel’s

14 performance was so ineffective as to have impinged upon the

15 fundamental fairness of the hearing in violation of the fifth

16 amendment due process clause,” Rabiu v. INS,

, 882

17 (2d Cir. 1994). An applicant cannot state an ineffective

18 assistance claim where counsel made reasonable, tactical

19 decisions. See Changxu Jiang v. Mukasey,

, 270

20 (2d Cir. 2008).

21 Here, the agency did not err in finding that Jiang’s

3 1 former counsel was not ineffective in failing to request

2 cancellation of removal and voluntary departure because the

3 record reflects that Jiang would not have been eligible for

4 those forms of relief. Cancellation requires an applicant

5 to show that her removal would cause a qualifying relative

6 “exceptional and extremely unusual hardship,” 8 U.S.C.

7 § 1229b(b)(1)(D), but at the time of Jiang’s original

8 proceedings, her only qualifying relative was her U.S.

9 citizen son who had spent most of his life in China. For

10 voluntary departure, she would have had to show that she had

11 the means to depart the United States and present her passport

12 or other travel document, see 8 U.S.C. § 1229c(b); 8 C.F.R.

13 § 240.25(b), but Jiang did not have a passport at the time of

14 the hearing.

15 Nor has Jiang shown that the agency erred in concluding

16 that she failed to meet the changed country conditions

17 exception to the deadline for reopening. There is no

18 deadline for a motion to reopen “based on changed country

19 conditions arising in the country of nationality or the

20 country to which removal has been ordered, if such evidence

21 is material and was not available and would not have been

4 1 discovered or presented at the previous

2 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

(c)(3)(ii). But Jiang was found not credible

4 as to her Falun Gong claim, and in any event, a comparison of

5 the country conditions evidence at the time of her 2011

6 hearing and her motion to reopen reveals only incremental

7 change in the treatment of Falun Gong practitioners and

8 Christians. See Kaur,

(upholding BIA’s

9 denial of motion to reopen where new evidence did not rebut

10 underlying adverse credibility determination); In re S-Y-G-,

11

(B.I.A. 2007) (change that is

12 “incremental or incidental” does not constitute changed

13 country conditions to excuse late motions to reopen). Jiang

14 did not provide any evidence in support of her claim that

15 conditions had materially changed for Jehovah’s Witnesses in

16 China.

17 For the foregoing reasons, the petition for review is

18 DENIED. All pending motions and applications are DENIED and

19 stays VACATED.

20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, 22 Clerk of Court

5