Hui Li v. Holder , 458 F. App'x 74 ( 2012 )

11-2021-ag
Li v. Holder
BIA
A072 836 724
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 6th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 HUI LI, AKA, CHENG YI YONG,
15 Petitioner,
16
17 v. 11-2021-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY 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; Derek C. Julius, Senior
28 Litigation Counsel; Katherine A.
29 Smith, Trial Attorney, Kira
1 Hettinger, Law Clerk, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is DENIED.
9 Hui Li, a native and citizen of the People’s Republic
10 of China, seeks review of an April 22, 2011, decision of the
11 BIA denying his motion to reopen. In re Hui Li, No. A072
12 836 724 (B.I.A. Apr. 22, 2011). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 of this case.
15 We review the BIA’s denial of Li’s motion to reopen for
16 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
17 Cir. 2006). When, as here, the BIA considers relevant
18 evidence of country conditions in evaluating the motion to
19 reopen, we review the BIA’s factual findings under the
20 substantial evidence standard. See Jian Hui Shao v.
21 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
22 Normally, an alien may file only one motion to reopen
23 and must do so within 90 days of the agency’s final
24 administrative decision. 8 U.S.C. § 1229a(c)(7)(A),(C); 8
2
1 C.F.R. § 1003.2(c)(2). However, there is no time or
2 numerical limitation for filing a motion to reopen if it is
3 “based on changed country conditions arising in the country
4 of nationality or the country to which removal has been
5 ordered, if such evidence is material and was not available
6 and would not have been discovered or presented at the
7 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
8 also 8 C.F.R. § 1003.2(c)(3)(ii).
9 Here, the BIA did not abuse its discretion in finding
10 that Li’s newly commenced practice of Christianity
11 constituted a change in his personal circumstances, rather
12 than a change in country conditions sufficient to excuse the
13 applicable time and numerical limitations. See Li Yong
14 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
15 Cir. 2005) (explaining that a change in “personal
16 circumstances in the United States” did not constitute a
17 change in country conditions excusing the filing deadline
18 for motions to reopen). Moreover, the BIA did not abuse its
19 discretion in finding that Li did not establish a material
20 change in conditions in China because he failed to submit
21 any evidence in support of his motion describing China’s
22 treatment of Christians and underground church members at
3
1 the time of his 2002 deportation proceedings. See Matter of
2 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (In evaluating
3 evidence of changed country conditions, the BIA “compare[s]
4 the evidence of country conditions submitted with the motion
5 to those that existed at the time of the merits hearing
6 below”). Indeed, while Lin submitted numerous governmental
7 and organizational reports and newspaper articles from 2009
8 describing China’s human rights practices and its treatment
9 of Christians and house church members, he did not submit
10 any reports or articles that described the Chinese
11 government’s treatment of those groups prior to 2009.
12 Although Li urges this Court to compare the 2009 U.S.
13 Department of State Country Report for China (“2009 Country
14 Report”) that he submitted to the BIA with earlier State
15 Department reports, and argues that the 2009 Country Report
16 “reflect[s] a worsening of repression” as compared to
17 previous years, we decline to consider these earlier reports
18 because they were not part of the administrative record.
19 See 8 U.S.C. § 1252(b)(4)(A). Accordingly, the BIA did not
20 abuse its discretion in finding that Li failed to
21 demonstrate any material change in country conditions
22 excusing the untimely and number-barred filing of his 2010
23 motion to reopen. See Matter of S-Y-G-, 24 I. & N. Dec. at
24 253.
4
1 Furthermore, the BIA reasonably concluded that the
2 country conditions evidence Li submitted did not demonstrate
3 a material change in country conditions because the 2009
4 Country Report and the 2009 Congressional-Executive
5 Commission on China Annual Report (“Congressional-Executive
6 Report”) indicated that the Chinese government’s oppression
7 of unregistered Christians reflected a continuation of its
8 decades-long effort to suppress unauthorized religious
9 groups, rather than an intensification of its harassment and
10 persecution of unregistered Christians. See 8 U.S.C.
11 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
12 Moreover, given the BIA’s explicit references to the
13 documentation Li submitted with his motion to reopen, we
14 cannot conclude that the BIA ignored any of Li’s evidence.
15 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337
16 n.17 (2d Cir. 2006) (holding that the BIA is not required to
17 “expressly parse or refute on the record” each individual
18 argument or piece of evidence offered by the petitioner as
19 long as it “has given reasoned consideration to the
20 petition, and made adequate findings”) (citation omitted).
21 Because the BIA’s finding that Li failed to demonstrate
22 a change in conditions in China is dispositive of his motion
23 to reopen, we do not reach the issue of whether Li
24 established his prima facie eligibility for relief.
5
1 Finally, we lack jurisdiction to review the BIA’s decision
2 not to reopen Li’s proceedings sua sponte, as that decision
3 is “entirely discretionary.” See Cyrus v. Keisler, 505 F.3d
4 197, 202 (2d Cir. 2007) (finding that the BIA’s decision not
5 to reopen sua sponte under 8 C.F.R. § 1003.2(a) is a
6 discretionary decision that is not subject to judicial
7 review).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, the pending motion
10 for a stay of removal in this petition is DENIED as moot.
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
6