Yong Qin Lian v. Holder , 440 F. App'x 15 ( 2011 )

10-3337-ag BIA
Lian v. Holder A073 177 072
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 7th day of October, two thousand eleven.
PRESENT:
JON O. NEWMAN,
JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
___________________________________
YONG QIN LIAN,
Petitioner,
v. 10-3337-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
___________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Cindy S. Ferrier, Senior Litigation
Counsel; Kimberly A. Burdge, Attorney,
Office of Immigration Litigation, 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.
Petitioner Yong Qin Lian, a native and citizen of the
People’s Republic of China, seeks review of the July 30, 2010,
decision of the BIA denying his motion to reopen. In re Yong
Qin Lian, No. A073 177 072 (B.I.A. July 30, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history of the case.
The BIA’s denial of Lian’s motion to reopen as untimely was
not an abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233
(2d Cir. 2005) (per curiam). A motion to reopen generally must
be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceedings sought
to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). There is no dispute that Lian’s 2009 motion was
untimely, as the final administrative decision was issued in
2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
The time limitation does not apply to a motion to reopen if it
is “based on changed circumstances arising in the country of
nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available and
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could not have been discovered or presented at the previous
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii). However, the BIA did not abuse its
discretion in finding that Lian failed to establish changed
circumstances in China.
Lian contends that his Falun Gong activities in the United
States constitute changed circumstances. As the BIA noted,
Lian’s Falun Gong activities, which he commenced in the United
States in 2008, reflect a self-induced change in personal
circumstances, and therefore do not exempt his motion from the
time limitation. See Wei Guang Wang v. BIA, 437 F.3d 270,
273-74 (2d Cir. 2006); see also Yuen Jin v. Mukasey, 538 F.3d
143, 155 (2d Cir. 2008).
Lian also argues that he demonstrated changed country
conditions by submitting evidence showing that the prohibition
against the practice of Falun Gong was being more strictly
enforced in China, and the BIA disregarded this evidence.
However, the BIA referenced this evidence in its decision, and
its acknowledgment was sufficient. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (noting that the BIA
does not need to expressly parse or refute every piece of
evidence submitted by the petitioner); Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (“we
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presume that an IJ has taken into account all of the evidence
before him, unless the record compellingly suggests
otherwise.”).
Moreover, the BIA’s determination that the evidence failed
to demonstrate changed country conditions is supported by
substantial evidence. See Jian Hui Shao, 546 F.3d at 169 (when
the BIA considers relevant evidence of country conditions in
evaluating a motion to reopen, we review the BIA’s factual
findings under the substantial evidence standard). The only
background materials Lian submitted relating to conditions in
China for Falun Gong practitioners was a 2007 United States
Department of State Profile of Asylum Claims and Country
Conditions for China, which indicated that “[t]he government has
continued to wage a severe campaign against Falun Gong.”
Because the evidence Lian submitted was insufficient to
establish a change in country conditions, the BIA did not abuse
its discretion in concluding that he failed to meet an exception
to the filing deadline, and, accordingly, in denying his motion
to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.
§ 1003.2(c)(2), (3).
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,
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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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