Opinion
No. 05-5152-ag NAC.
December 8, 2008.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is GRANTED.
FOR PETITIONER: Gary J. Yerman, New York, New York. FOR RESPONDENT: Todd P. Graves, United States Attorney, Western District of Missouri, Jerry L. Short, Assistant United States Attorney, Kansas City, Missouri.
PRESENT: HON. PIERRE N. LEVAL, HON. BARRINGTON D. PARKER, HON. PETER W. HALL, Circuit Judges.
Petitioner Ping Sai Zian, a native and citizen of the People's Republic of China, seeks review of the September 9, 2005 order of the BIA denying her motion to reopen. In re Ping Sai Zian, No. A77 293 362 (B.I.A. Sept. 9, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court's admonition that such motions are "disfavored." Azmond Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).
As the BIA found, because Zian's June 2005 motion to reopen was filed over two years after its January 2003 decision, the motion was untimely. 8 C.F.R. § 1003.2(c)(2). However, motions to reopen "[t]o apply or reapply for asylum . . . based on changed circumstances arising in the country of nationality" are not subject to the ordinary time and numerical limits. 8 C.F.R. § 1003.2(c)(3)(ii). Zian contends that the BIA abused its discretion by failing to acknowledge her argument regarding changed circumstances arising in China based on the recent "implementation" of a 2002 family planning law. We agree.
It is uncontested by the parties that the BIA did not abuse its discretion in finding that the birth of Zian's U.S. citizen children did not constitute changed circumstances arising in China. See, e.g., Yuen Jin v. Mukasey, 538 F.3d 143, 151 (2d Cir. 2008).
Remand is necessary where the BIA "fails completely to address evidence of changed country conditions offered by a petitioner." Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006). In its brief, the government concedes that the BIA did not address Zian's argument regarding changed circumstances arising in China. Indeed, in finding Zian's motion untimely, the BIA stated in a parenthetical that the exceptions to the 90-day filing deadline were "not pertinent here." Given such language, Zian's case is not analogous to Wei Guang Wang in which the BIA considered the evidence of changed country conditions, albeit in an abbreviated fashion. See id. Because the BIA did not consider to any extent the relevant evidence and arguments here, we conclude that remand is appropriate. Although, in certain circumstances, we will decline to remand when we can confidently predict the outcome, cf. id. at 276, we also will not ordinarily "assume a hypothetical basis" for the agency's decision. Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391, 400 (2d Cir. 2005). Thus, we apply the ordinary remand rule, allowing the BIA to consider Zian's arguments in the first instance. See Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d Cir. 2007).
For the foregoing reasons, the petition for review is GRANTED, the decision of the BIA is VACATED, and the case is REMANDED for further proceedings consistent with this order. The pending request for oral argument in this petition is DENIED.