Yong Shing Huang v. Holder , 387 F. App'x 100 ( 2010 )

09-3757-ag
Huang v. Holder
BIA
A079 741 586
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 27 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 YONG SHING HUANG,
14 A.K.A. YONG SHENG HUANG,
15 Petitioner,
16
17 v. 09-3757-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Jed S. Wasserman, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Emily Anne Radford,
29 Assistant Director; Aviva L.
30 Poczter, Senior Litigation Counsel,
31 Office of Immigration Litigation,
32 United States Department of Justice,
33 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 Yong Shing Huang, a native and citizen of the People’s
6 Republic of China, seeks review of an August 6, 2009, order
7 of the BIA denying his motion to reopen. In re Yong Shing
8 Huang, No. A079 741 586 (B.I.A. Aug. 6, 2009). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Huang’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien may file only one motion to reopen
14 and 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 However, there is no time or numerical limitation where the
17 alien establishes materially “changed country conditions
18 arising in the country of nationality.” 8 U.S.C.
19 § 1229a(c)(7) (C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
20 Here, the BIA did not abuse its discretion in denying
21 Huang’s motion to reopen, which was indisputably untimely.
22 As the BIA found, Huang’s alleged membership in the
2
1 China Democracy Party (“CDP”) was a change in his personal
2 circumstances, not a change in country conditions. See Yuen
3 Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). Although
4 Huang asserts that conditions for pro-democracy supporters
5 in China have worsened since the time of the IJ’s decision,
6 changing one’s personal circumstances in a way that
7 coincides with changes in one’s country–years after being
8 ordered removed–does not meet the changed country conditions
9 exception set forth at 8 U.S.C. § 1229a(c)(7)(C)(ii). As we
10 have observed, the existing legal system does not permit
11 aliens who have been ordered removed “to disregard [those]
12 orders and remain in the United States long enough to change
13 their personal circumstances (e.g., by having children or
14 practicing a persecuted religion) and initiate new
15 proceedings via a new asylum application.” Yuen Jin, 538
16 F.3d at 155; see also Wei Guang Wang v. BIA, 437 F.3d 270,
17 274 (2d Cir. 2006).
18 We find no abuse of discretion in the BIA’s
19 determination that the unauthenticated subpoena and unsworn
20 declaration Huang submitted failed to satisfy his burden of
21 demonstrating that reopening was warranted. Id.;
22 see 8 C.F.R. § 1003.2(b)(3)(ii) . Moreover, contrary to
3
1 Huang’s argument, the record does not demonstrate that the
2 BIA failed to consider any of the background evidence he
3 submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
4 F.3d 315, 338 (2d Cir. 2006); see also Wei Guang Wang, 437
5 F.3d at 275.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34.1(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
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