Han Ying Zhu v. Holder ( 2013 )

12-1409
Zhu v. Holder
BIA
A077 309 027
A077 309 028
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 8th day of August, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RAYMOND J. LOHIER, JR.,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 HAN YING ZHU, AKA HAN YING ZHOU, DA
14 GAO,
15 Petitioners,
16
17 v. 12-1409
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Dehai Zhang, Flushing, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Russell J.E.
29 Verby, Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioners Han Ying Zhu and Da Gao, mother and son and
10 natives and citizens of China, seek review of a March 12,
11 2012, decision of the BIA denying their motion to reopen
12 their removal proceedings. In re Han Ying Zhu, Da Gao, Nos.
13 A077 309 027/28 (B.I.A. Mar. 12, 2012). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
18 (2d Cir. 2006) (per curiam). An alien seeking to reopen
19 proceedings is required to file a motion to reopen no later
20 than 90 days after the date on which the final
21 administrative decision was rendered and is permitted to
22 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),
23 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that
24 Petitioners’ third motion to reopen, filed in November 2011,
25 was untimely and number-barred because their orders of
2
1 removal became final in September 2005. See 8 U.S.C.
2 § 1101(a)(47)(B)(i).
3 Petitioners contend, however, that the Chinese
4 government’s awareness of Zhu’s pro-democracy activities in
5 the United States constitutes a material change in country
6 conditions excusing their motion from the applicable time
7 and numerical limitations. See 8 U.S.C.
8 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
9 Notwithstanding Petitioners’ arguments to the contrary,
10 the BIA did not abuse its discretion in finding that they
11 failed to demonstrate a material change of conditions in
12 China. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
13 Cir. 2008); see also In re S-Y-G-, 24 I. & N. Dec. 247, 253
14 (B.I.A. 2007) (“In determining whether evidence accompanying
15 a motion to reopen demonstrates a material change in country
16 conditions that would justify reopening, [the BIA]
17 compare[s] the evidence of country conditions submitted with
18 the motion to those that existed at the time of the merits
19 hearing below.”). As the BIA reasonably determined, Zhu’s
20 membership in the China Democracy Party (“CDP”) and
21 pro-democracy activities in the United States constitute
22 changed personal circumstances, which are insufficient to
3
1 excuse the untimely and number-barred filing of Petitioners’
2 motion to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270,
3 273-74 (2d Cir. 2006) (making clear that the time and
4 numerical limitations on motions to reopen may not be
5 suspended because of a “self-induced change in personal
6 circumstances” that is “entirely of [the applicant’s] own
7 making after being ordered to leave the United States”);
8 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008)
9 (concluding that the system does not permit aliens who have
10 been ordered removed “to disregard [those] orders and remain
11 in the United States long enough to change their personal
12 circumstances (e.g., by having children or practicing a
13 persecuted religion) and initiate new proceedings via a new
14 asylum application”). Similarly, although Petitioners argue
15 that they established their entitlement to reopening through
16 individualized evidence demonstrating the Chinese
17 government’s awareness of Zhu’s CDP activities in the United
18 States, we have consistently rejected the argument that a
19 foreign government’s subsequent awareness of a petitioner’s
20 United States activities alone constitutes a material change
21 in country conditions.
22
4
1 Contrary to Petitioners’ assertion, the BIA did not
2 abuse its discretion in finding that the country conditions
3 evidence reflected a continuation of the Chinese
4 government’s suppression of pro-democracy activists that
5 existed at the time of their 2004 merits hearing rather than
6 a material change. See In re S-Y-G-, 24 I. & N. Dec. at
7 253. While Petitioners also appear to suggest that they
8 established changed country conditions based on a CDP
9 statement submitted in support of a prior motion to reopen,
10 Petitioners did not seek review of the BIA’s denial of their
11 prior motion, which explicitly considered this evidence and
12 found it insufficient to warrant reopening. Petitioners’
13 contention that the BIA placed undue weight on Zhu’s
14 underlying adverse credibility determination is also without
15 merit because the BIA assumed the reliability of their
16 evidence.
17 Because the BIA did not abuse its discretion in finding
18 that Petitioners failed to establish a material change in
19 country conditions, we do not address their prima facie
20 eligibility for asylum, withholding of removal, and relief
21 under the Convention Against Torture. See INS v.
22 Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).
23
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
6