Yong Biao Liu v. Holder ( 2012 )

11-3256-ag
Liu v. Holder
BIA
A073 647 232
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 Richard C. Lee United
3 States Courthouse, 141 Church Street, in the City of New
4 Haven, Connecticut, on the 25th day of May, two thousand
5 twelve.
6
7 PRESENT:
8 DENNIS JACOBS,
9 Chief Judge,
10 JON O. NEWMAN,
11 ROBERT D. SACK,
12 Circuit Judges.
13 _______________________________________
14
15 YONG BIAO LIU,
16 Petitioner,
17
18 v. 11-3256-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Thomas D. Barra, New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Melissa Neiman-Kelting,
29 Senior Litigation Counsel; Ilissa M.
30 Gould, Trial Attorney, Office of
31 Immigration Litigation, United
32 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 Biao Liu, a native and citizen of the People’s
6 Republic of China, seeks review of a July 14, 2011, decision
7 of the BIA denying his motion to reopen. In re Yong Biao
8 Liu, No. A073 647 232 (B.I.A. July 14, 2011). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Liu’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 agency’s final
15 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
16 8 C.F.R. § 1003.2(c)(2). Although Liu’s motion was
17 indisputably untimely and number-barred because it was filed
18 more than eight years after the agency’s final order of
19 deportation and it was his second motion to reopen,
20 see 8 U.S.C. § 1229a(c)(7)(A),(C)(i), there is no time or
21 numerical limitation for filing a motion to reopen if it is
22 “based on changed country conditions arising in the country
23 of nationality or the country to which removal has been
2
1 ordered, if such evidence is material and was not available
2 and would not have been discovered or presented at the
3 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
4 8 C.F.R. § 1003.2(c)(3)(ii).
5 Here, the BIA did not abuse its discretion in finding
6 that the evidence Liu submitted in support of his motion to
7 reopen was not material to his claim that he feared
8 persecution if returned to China on account of his “Falun
9 Gong identity,” as the evidence did not establish that Liu
10 was in fact a practitioner of Falun Gong. See INS v. Abudu,
11 485 U.S. 94, 104-05 (1988) (recognizing that a movant’s
12 failure to produce material evidence is an independent basis
13 for the denial of a motion to reopen). Indeed, as the BIA
14 found, neither the affidavit or photographs purportedly
15 depicting his participation in Falun Gong-related activities
16 in the United States, nor the country conditions evidence in
17 the record, established that Liu was practicing Falun Gong.
18 See Abudu, 485 U.S. at 104-05. Furthermore, contrary to
19 Liu’s position, the BIA properly declined to accord
20 probative weight to the vague assertions that he had a
21 “Falun Gong identity,” given the agency’s underlying adverse
22 credibility determination.
3
1 See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.
2 2007) (relying on the doctrine falsus in uno, falsus in
3 omnibus to conclude that the agency may decline to credit
4 documentary evidence submitted with a motion to reopen by an
5 alien who was found not credible in the underlying
6 proceeding); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
7 315, 342 (2d Cir. 2006) (holding that the weight afforded to
8 the applicant’s evidence in immigration proceedings lies
9 largely within the agency’s discretion).
10 Additionally, the BIA reasonably determined that the
11 record did not demonstrate Liu’s prima facie eligibility for
12 relief. See Abudu, 485 U.S. at 104 (holding that the BIA
13 may deny a motion to reopen on the ground that the movant
14 has not established prima facie eligibility for the
15 underlying relief sought). Indeed, as the BIA found, Liu
16 failed to demonstrate an objectively reasonable fear of
17 persecution, as he did not present any evidence that Chinese
18 officials were aware or would become aware of his “Falun
19 Gong identity,” or that the Chinese government targets
20 similarly-situated individuals upon their return to China.
21 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.
22 2008) (holding that an applicant may establish eligibility
23 for asylum based exclusively on activities undertaken after
4
1 his arrival in the United States so long as he demonstrates
2 that “authorities in his country are aware of his activities
3 or likely to become aware of his activities”); Jian Xing
4 Huang v. INS, 421 F.3d 125, 128 (2d Cir. 2005) (stating that
5 to demonstrate objective reasonableness, the applicant must
6 show that a “reasonable person in the petitioner’s
7 circumstances would fear persecution if returned to his
8 native country”).
9 Accordingly, because Liu failed to present material
10 evidence that he would be affected by any change in
11 conditions in China, the BIA did not abuses its discretion
12 in denying is motion to reopen. See 8 U.S.C.
13 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see also
14 Abudu, 485 U.S. at 104.
15 For the foregoing reasons, the petition for review is
16 DENIED. Any pending request for oral argument in this
17 petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
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