Zhi Yun Liu v. Holder , 424 F. App'x 49 ( 2011 )

10-1227-ag
Liu v. Holder
BIA
A098 769 285
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 15th day of June, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 ZHI YUN LIU,
14 Petitioner,
15
16 v. 10-1227-ag
17 NAC
18
19 ERIC H. HOLDER, JR., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Carl H. McIntyre, Jr.,
28 Assistant Director; Marion E.
29 Guyton, Trial Attorney, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Zhi Yun Liu, a native and citizen of the People’s
6 Republic of China, seeks review of a March 15, 2010, order
7 of the BIA denying his motion to reopen his removal
8 proceedings. In re Liu, No. A098 769 285 (B.I.A. Mar. 15,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA did not abuse its discretion by denying Liu’s
17 motion to reopen as untimely, as he filed it more than two
18 years after his final order of removal. See id.; 8 C.F.R.
19 § 1003.2(c)(2).
20 Although the time limits on motions to reopen may be
21 excused when the movant demonstrates changed country
22 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
2
1 reasonably concluded that only Liu’s personal circumstances
2 had changed, as his claim was based on the fact that he
3 converted to Christianity in 2009. See Wei Guang Wang v.
4 BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting that “apparent
5 gaming of the system in an effort to avoid [removal] is not
6 tolerated by the existing regulatory scheme”); see also Yuen
7 Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008) (holding
8 that the existing legal system does not permit aliens who
9 have been ordered removed “to disregard [those] orders and
10 remain in the United States long enough to change their
11 personal circumstances (e.g., by having children or
12 practicing a persecuted religion) and initiate new
13 proceedings via a new asylum application”).
14 Moreover, substantial evidence supports the BIA’s
15 conclusion that Liu failed to show a material change in
16 country conditions. Although the evidence Liu submitted
17 indicated an increase in repression of Christians in certain
18 areas around the time of the Olympics, the evidence also
19 indicated that freedom to participate in religious
20 activities continued to increase in many areas.
21 Accordingly, the BIA reasonably determined that, although
22 China has detained and harassed leaders of underground
3
1 churches, Liu failed to establish that conditions in China
2 had materially changed to warrant reopening. See Siewe v.
3 Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“where there are
4 two permissible views of the evidence, the fact finder’s
5 choice between them cannot be clearly erroneous”); Xiao Ji
6 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
7 2006) (holding that the weight afforded to the applicant’s
8 evidence in immigration proceedings lies largely within the
9 discretion of the IJ); see also Jian Hui Shao v. Mukasey,
10 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the BIA’s
11 factual findings regarding changed country conditions under
12 the substantial evidence standard).
13 Finally, given the BIA’s explicit references to the
14 documentation submitted with the motion to reopen, a
15 reasonable fact-finder would not be compelled to conclude
16 that the BIA ignored any material evidence that Liu
17 submitted. See Wei Guang Wang, 437 F.3d at 275 (holding
18 that the BIA is not required to “expressly parse or refute
19 on the record each individual argument or piece of evidence
20 offered by the petitioner” as long as it “has given reasoned
21 consideration to the petition, and made adequate findings”);
22 see also Xiao Ji Chen, 471 F.3d at 337 n.17 (2d Cir. 2006)
4
1 (presuming that the agency “has taken into account all of
2 the evidence before [it], unless the record compellingly
3 suggests otherwise”).
4 Accordingly, the BIA did not abuse its discretion by
5 denying Liu’s motion. See Ali, 448 F.3d at 517.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
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