Zuo Shi Lin-Guo v. Holder ( 2012 )

11-3168-ag
Lin-Guo v. Holder
BIA
A098 980 945
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 25th day of July, two thousand twelve.
5
6 PRESENT:
7 ROBERT D. SACK,
8 GERARD E. LYNCH,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _______________________________________
12
13 ZUO SHI LIN-GUO, AKA ZU SHI LIN,
14 Petitioner,
15
16 v. 11-3168-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Peter Lobel, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; William C. Minick,
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 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 Zuo Shi Lin-Guo, a native and citizen of the People’s
6 Republic of China, seeks review of a July 12, 2011, decision
7 of the BIA denying his motion to reopen. In re Zuo Shi Lin-
8 Guo, No. A098 980 945 (B.I.A. July 12, 2011). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Li’s motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). When, as here, the BIA considers relevant
14 evidence of country conditions in evaluating the motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
18 An alien may file only one motion to reopen and must do
19 so within 90 days of the agency’s final administrative
20 decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
21 § 1003.2(c)(2). Although Lin-Guo’s motion was indisputably
22 untimely because it was filed more than two years after the
2
1 agency’s final order of removal, see 8 U.S.C.
2 § 1229a(c)(7)(C)(i), there is no time limitation for filing
3 a motion to reopen to apply or reapply for asylum if it is
4 “based on changed country conditions arising in the country
5 of nationality or the country to which removal has been
6 ordered, if such evidence is material and was not available
7 and would not have been discovered or presented at the
8 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
9 also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not
10 abuse its discretion in finding that Lin-Guo failed to
11 establish such circumstances based on his newly commenced
12 practice of Christianity in the United States. See Li Yong
13 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
14 Cir. 2005) (explaining that a change in “personal
15 circumstances in the United States” did not constitute a
16 change in country conditions excusing the filing deadline
17 for motions to reopen).
18 Moreover, the BIA reasonably concluded that Lin-Guo’s
19 evidence of the persecution of Christians in China did not
20 establish a material change in country conditions since his
21 September 2006 proceedings. See 8 U.S.C.
22 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Matter of
3
1 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (noting that in
2 evaluating evidence of changed country conditions, the BIA
3 “compare[s] the evidence of country conditions submitted
4 with the motion to those that existed at the time of the
5 merits hearing below”). Indeed, the BIA, referencing the
6 U.S. State Department reports and newspaper articles in the
7 record, reasonably determined that, although some of the
8 evidence described a slight intensification of persecution
9 of Christians since 2006, the evidence nevertheless failed
10 to establish a material change in country conditions because
11 it described conditions substantially similar to those that
12 existed at the time of Lin-Guo’s 2006 hearing.
13 See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §
14 1003.2(c)(3)(ii); see also Matter of S-Y-G-, 24 I. & N. Dec.
15 at 257 (explaining that an “incremental or incidental”
16 change in a country’s policies does not constitute changed
17 country conditions for purposes of motions to reopen); Siewe
18 v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“where there
19 are two permissible views of the evidence, the fact finder’s
20 choice between them cannot be clearly erroneous.”).
21 Moreover, the BIA reasonably found that Lin-Guo failed
22 to demonstrate an intensification of persecution of
23 Christians in his native Fuzhou City since his 2006 hearing,
4
1 as the country conditions evidence in the record did not
2 describe any incidents of oppression of unregistered
3 Christians occurring in Fuzhou City. See 8 C.F.R.
4 § 1003.2(c)(1); Matter of S-Y-G-, 24 I. & N. Dec. at 257.
5 Furthermore, the BIA reasonably determined that the letter
6 written by Lin-Guo’s sister did not constitute material
7 evidence, as it was vague and lacking in detail, and did not
8 describe any change in the Chinese government’s treatment of
9 Christians since 2006. See 8 C.F.R. § 1003.2(c)(1); see
10 also Abudu, 485 U.S. at 104-05 (recognizing that a movant’s
11 failure to produce material evidence is an independent basis
12 for the denial of a motion to reopen); Xiao Ji Chen v. U.S.
13 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)(holding
14 that the weight afforded to the applicant’s evidence in
15 immigration proceedings lies largely within the agency’s
16 discretion).
17 Accordingly, because substantial evidence supports the
18 BIA’s conclusion that Lin-Guo failed to establish that
19 conditions for Christians in China had materially changed
20 since his 2006 proceedings, the BIA did not abuse its
21 discretion in denying his motion to reopen as untimely.
22 See Ali, 448 F.3d at 517; Jian Hui Shao, 546 F.3d at 169.
23
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6