Li Hu He v. Holder ( 2010 )

09-4173-ag
He v. Holder
BIA
A073 188 637
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 23 rd day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 LI HU HE,
14 Petitioner,
15
16 v. 09-4173-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Peter D. Lobel, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda Wernery, Assistant
27 Director; Thankful T. Vanderstar,
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 Li Hu He, a native and citizen of the People’s Republic
6 of China, seeks review of a September 10, 2009, order of the
7 BIA denying his motion to reopen. In re Li Hu He, No. A073
8 188 637 (B.I.A. Sept. 10, 2009). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We review the BIA’s denial of He’s motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). An alien may only file one motion to reopen and
14 must do so within 90 days of the final administrative
15 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
16 He’s motion was indisputably untimely, as it was filed more
17 than six years after the BIA issued a final order in the
18 case. Nonetheless, there is no time or numerical limitation
19 if the alien establishes materially “changed country
20 conditions arising in the country of nationality.” 8 U.S.C.
21 § 1229a(c)(7) (C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
2
1 The BIA did not abuse its discretion in finding that He
2 failed to demonstrate a material change in country
3 conditions with respect to the Chinese government’s
4 treatment of unregistered house church members. At his 2001
5 hearing, He submitted the 1998 State Department Profile of
6 Asylum Claims for China. The Profile stated that
7 “[u]nregistered religious activity is illegal and is a
8 punishable offense.” It also reported “expectations of
9 continued or increased repression of unofficial Christian
10 groups.” With his motion to reopen, He submitted the 2007
11 International Religious Freedom Report for China, which
12 stated that “respect for freedom of religion remained poor.”
13 The 2007 Report also noted that while “some local
14 authorities continued to harass religious groups that did
15 not register,” in other areas, “supervision . . . was less
16 stringent and registered and unregistered churches coexisted
17 openly,” and that “[a]s in past years, local authorities
18 took steps to repress unregistered religious groups.” In
19 addition, the newspaper articles He submitted showed
20 instances of repression of particular groups of house church
21 members, but did not establish that the Chinese government’s
22 treatment of Christians has materially changed since his
3
1 prior hearing, with one article specifically noting that
2 “repression against unofficial church groups varies by
3 region.” Therefore, even assuming that some of He’s
4 evidence indicated an increase in persecution of Christians,
5 the BIA’s decision was not an abuse of discretion. See Ke
6 Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 93 (2d Cir.
7 2001) ; see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 171
8 (2d Cir. 2008) (“we do not ourselves attempt to resolve
9 conflicts in record evidence, a task largely within the
10 discretion of the agency”); Xiao Ji Chen v. U.S. Dep’t of
11 Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight
12 afforded to the evidence lies largely within the agency’s
13 discretion). Furthermore, contrary to He’s argument, the
14 BIA’s failure to provide a “reasoned analysis” of the
15 evidence in the record was also not an abuse of discretion.
16 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
17 (the BIA need not “expressly parse or refute on the record
18 each individual argument or piece of evidence offered by the
19 petitioner,” and may consider evidence of changed country
20 conditions “in summary fashion without a reviewing court
21 presuming that it has abused its discretion” (internal
22 quotations omitted)); see also Xiao Ji Chen, 471 F.3d at 338
4
1 n.17 (“[W]e presume that [the agency] has taken into account
2 all of the evidence before [it], unless the record
3 compellingly suggests otherwise.”). 1
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2), and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16
1
We note also that He's original claim of
persecution was denied, in part, because the immigration
judge (the "IJ") found that He's testimony in this
respect was not credible. The IJ's credibility
determination was well-reasoned and supported by specific
findings and references to the record.
5