Jin Xia Zhan v. Holder , 515 F. App'x 2 ( 2013 )

12-17
Zhan v. Holder
BIA
A079 453 032
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of March, two thousand thirteen.
PRESENT:
JOSÉ A. CABRANES,
ROBERT D. SACK,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
JIN XIA ZHAN, AKA JINXIA ZHAN,
Petitioner,
v. 12-17
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Francis W. Fraser,
Senior Litigation Counsel; Jacob A.
Bashyrov, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Jin Xia Zhan, a native and citizen of the People’s
Republic of China, seeks review of a December 8, 2011 order
of the BIA denying her motion to reopen her removal
proceedings. In re Jin Xia Zhan, No. A079 453 032 (B.I.A.
Dec. 8, 2011). 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. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). Here, the BIA did not abuse its discretion
by denying Zhan’s 2011 motion to reopen as untimely, as it
was filed over five years after Zhan’s 2005 final order of
removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). Although the time and numerical limits on
motions to reopen may be excused when the movant
demonstrates changed country conditions, 8 U.S.C.
§ 1229a(c)(7)(C)(ii), the BIA reasonably concluded that Zhan
did not demonstrate a material change. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the
2
BIA’s factual findings regarding changed country conditions
under the substantial evidence standard).
As an initial matter, the record does not support
Zhan’s contention that the BIA did not sufficiently consider
all of her evidence, as the BIA explicitly addressed country
conditions at the time of her hearing as well as the
evidence she presented to show recent changes.
As the BIA found, Zhan’s conversion to Christianity in
the United States is a change in her personal circumstances,
not a material change in country conditions. See Wei Guang
Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006).
Additionally, substantial evidence supports the BIA’s
conclusion that Zhan’s evidence displayed a “continuation”
rather than a material change of conditions for Christians
in Fujian Province. As the BIA noted, the 1998 Country
Profile prepared by the Bureau of Democracy, Human Rights
and Labor of the United States Department of State reports
that prior to Zhan’s merits hearing, there were police
raids, detentions, and disappearances of Christian leaders
in China and repression of congregations in Fujian Province.
A 2009 China Aid Association Annual Report suggests that
those conditions remained unchanged, since it does not
3
include Fujian Province in its list of localities that
experienced an increase or decrease in persecution. See
Matter of S-Y-G-, 24 I. & N. Dec 247, 253 (BIA 2007) (“In
determining whether evidence accompanying a motion to reopen
demonstrates a material change in country conditions that
would justify reopening, [the BIA] compare[s] the evidence
of country conditions submitted with the motion to those
that existed at the time of the merits hearing below.”).1
Contrary to Zhan’s contention, the BIA did not abuse
its discretion by giving “minimal weight” to the letter Zhan
submitted from a friend, which described the friend’s 2010
arrest in Fujian Province for attending a house church.
Since Zhan had been found not credible in the underlying
proceedings, the BIA had no obligation to ascribe further
credit to the letter, which in any event concerned
allegations of only a single instance of interference with
worship. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 342 (2d Cir. 2006); see also Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 148 (2d Cir. 2007) (holding that the
1
Our review is limited to the record before the
agency. See 8 U.S.C. § 1252(b)(4)(A). In the
circumstances presented here, we decline Zhan’s request
to take judicial notice of the 2002 State Department
Country Report.
4
BIA did not abuse its discretion in declining to credit
documents submitted with a motion to reopen where alien had
been found not credible in the underlying asylum hearing).
Accordingly, we find no error in the BIA’s conclusion that
Zhan failed to demonstrate materially changed country
conditions that would excuse the untimely filing of her
motion. See 8 U.S.C. § 1229a(c)(7)(C).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5