Ke Chiang Dai v. Holder , 455 F. App'x 25 ( 2012 )

10-4636-ag
Dai v. Holder
BIA
A077 272 724
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 4th day of January, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
KE CHIANG DAI,
Petitioner,
v. 10-4636-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Blair T. O’Connor, Assistant Director;
John B. Holt, 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.
Ke Chiang Dai, a native and citizen of China, seeks
review of an October 18, 2010, order of the BIA denying his
motion to reopen. In re Ke Chiang Dai, No. A077 272 724
(B.I.A. Oct. 18, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
We have reviewed the agency’s denial of Dai’s motion to
reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006), and its consideration of evidence of
country conditions for substantial evidence, see Jian Hui Shao
v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Because Dai’s
motion to reopen was untimely, he was required to establish
that conditions in China had changed since his 2005 merits
hearing. See 8 U.S.C. § 1229a(c)(7)(C); Matter of S-Y-G-, 24
I. & N. Dec. 247, 253 (BIA 2007) (providing that in evaluating
evidence of changed country conditions, 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”).
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We note that there are several flaws in the agency’s
decision. For example, it concluded that Dai “failed to
establish that conditions in China and, more specifically, his
home province of Fujian, have changed fundamentally since his
merits hearing” (emphasis added), when Dai’s home province is
Zhejiang. It stated that there was no evidence in the record
that any increase in China’s harassment and abuse against
Christians around the Beijing Olympics had continued after the
Olympics when the Congressional-Executive Commission on
China’s 2009 report explicitly stated that the “pre-Olympics
campaign against Protestant activists and unregistered
congregations in 2008 showed few signs of abatement in 2009.”
Its decision to discount a letter from Dai’s friend Hong who
lived in Ouhai District, Wenzhou City because Dai lived in
Lucheng District, Wenzhou City and the two “never resided in
the same city or district” and thus did not explain how they
knew each other was arbitrary, given that Lucheng District and
Ouhai District are neighboring districts within the same
city.1 And its suggestion that Dai “does [not] have to attend
1
This fact is readily verifiable by searching for a map of
“Wenzhou City, China” on http://maps.google.com/. See Burger v.
Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (citing the Federal
Rules of Evidence for the proposition that judicially noticed facts
must be not “subject to reasonable dispute” in that they are either
“generally known” or “capable of accurate and ready determination
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a ‘mega-church’ or the like” to practice Catholicism may be an
inappropriate instruction about how Christians in China should
tailor their religious practices to avoid persecution. See
Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004)
(concluding that the agency erred in assuming “that one is not
entitled to claim asylum on the basis of religious persecution
if . . . one can escape the notice of the persecutors by
concealing one’s religion”).
Nevertheless, despite these flaws, we do not remand
because the agency’s overall assessment of Dai’s evidence of
changed country conditions is clear and supported by the
record. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 335 (2d Cir. 2006) (holding that an error does not
require remand if remand would be futile because “we can state
with confidence that the same decision would be made if we
were to remand”). Regardless of the BIA’s reasons for giving
little weight to Hong’s letter, we agree with the BIA that
Hong’s arrest for attending a house church did not establish
changed country conditions because house churches were illegal
at the time of Dai’s 2005 merits hearing and Hong’s arrest was
a single incident and thus did not itself demonstrate a change
in China’s policies.
by resort to sources whose accuracy cannot reasonably be
questioned.”).
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Moreover, although Dai presented background evidence
suggesting that religious activity was vigorously suppressed
in China before and after the 2008 Beijing Olympic Games, the
record is ambiguous concerning whether the repression
surrounding the Games represented changed conditions in China
or a continuation of the ongoing repression of Christians, and
whether it had continued in the years after the Games. Given
this ambiguity and because the agency considered and evaluated
Dai’s evidence, we find no error in its conclusion that he did
not establish changed country conditions. See Jian Hui Shao,
546 F.3d at 171 (“We do not ourselves attempt to resolve
conflicts in record evidence, a task largely within the
discretion of the agency.”); Siewe v. Gonzales, 480 F.3d 160,
167-68 (2d Cir. 2007) (“Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot
be clearly erroneous. Rather, a reviewing court must defer to
that choice so long as the deductions are not illogical or
implausible.” (internal citations and quotations omitted)).
Because the BIA reasonably concluded that Dai did not
establish a change in country conditions, it did not abuse its
discretion by denying his motion to reopen as untimely. See
8 U.S.C. § 1229a(c)(7)(C). Accordingly, we decline to reach
Dai’s prima facie eligibility for relief and do not address
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his argument that the BIA erred in suggesting that he was
required to show that the Chinese authorities were aware of
his conversion to Catholicism.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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