Ze Sheng Jin v. Holder , 443 F. App'x 662 ( 2011 )

10-3174-ag
Jin v. Holder
BIA
A096 262 382
A094 778 715
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 3rd day of November, two thousand eleven.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 ZE SHENG JIN, REN HUA LI,
15 Petitioners,
16
17 v. 10-3174-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Scott E. Bratton, Cleveland, Ohio
25
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Carl H. McIntyre, Jr.,
29 Assistant Director; Christina J.
1 Martin, Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
9 review is DENIED.
10 Ze Sheng Jin and Ren Hua Li, natives and citizens of
11 China, seek review of a July 6, 2010, decision of the BIA
12 denying their motion to reopen. In re Ze Sheng Jin, Ren Hua
13 Li, Nos. A096 262 382, A094 778 715 (B.I.A. July 6, 2010).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history of this case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
18 Cir. 2006). Where the BIA evaluates country conditions
19 evidence, we review that determination for substantial
20 evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
21 Cir. 2008).
22 Petitioners’ November 2009 motion to reopen was
23 untimely because the BIA entered a final administrative
24 order of removal in August 2008. See
25 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
2
1 However, the time limitation does not foreclose a motion to
2 reopen asylum proceedings that is “based on changed
3 circumstances arising in the country of nationality or in
4 the country to which deportation has been ordered, if such
5 evidence is material and was not available and could not
6 have been discovered or presented at the previous hearing.”
7 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
8 § 1229a(c)(7)(C)(i). Petitioners argue that the BIA abused
9 its discretion in concluding that they failed to establish
10 such changed country conditions.
11 Petitioners’ argue that the BIA failed to properly
12 consider several letters they submitted from friends and
13 family members in China, but we presume that the agency “has
14 taken into account all of the evidence before [it] unless
15 the record compellingly suggests otherwise”. Xiao Ji Chen v.
16 U.S. Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006)
17 And, there is no indication that the BIA ignored any of the
18 evidence; indeed, the BIA specifically referred to the
19 letters in its decision, noting that, given the other
20 evidence, they were not sufficient to indicate a change in
21 Chinese government policy.
22
3
1 Petitioners argue that the BIA abused its discretion in
2 giving more weight to the United States Department of State
3 2008 Human Rights Report on China than to other materials in
4 evidence. However, the weight afforded to the applicant’s
5 evidence in immigration proceedings lies largely within the
6 discretion of the agency. Xiao Ji Chen, 471 F.3d at 342.
7 See also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir.
8 2006) (concluding that State Department reports are
9 probative).
10 Nor did the BIA err in concluding that Petitioners
11 failed to demonstrate changed country conditions for
12 Christians in China. Based on the record evidence, the BIA
13 reasonably concluded that the Chinese government restricted
14 the practice of religion prior to Petitioners’ 2006 merits
15 hearing, and has continued to do so, but that the evidence
16 did not indicate that such repression had materially
17 worsened so as to warrant reopening of Petitioners’ case.
18 Cf. Norani v. Gonzales, 451 F.3d 292, 244-45 (2d Cir. 2006)
19 (abuse of discretion for BIA to deny motion to reopen in
20 light of “substantial record evidence” of worsened country
21 conditions in Iran).
22
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
5