Cuihua Dong v. Holder , 434 F. App'x 20 ( 2011 )

10-4022-ag
Dong v. Holder
BIA
A095 381 913
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 15th day of August, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CUIHUA DONG,
14 Petitioner,
15
16 v. 10-4022-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Wendy Tso, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Frances W. Fraser, Senior
27 Litigation Counsel; Steven F. Day,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, 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 Cuihua Dong, a native and citizen of the People’s
6 Republic of China, seeks review of a September 15, 2010
7 order of the BIA denying her third motion to reopen. In re
8 Cuihua Dong, No. A095 381 913 (B.I.A. Sept. 15, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 We review the BIA’s denial of Dong’s motion to reopen
12 for abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
15 Doherty, 502 U.S. 314, 322-23 (1992)). We review the BIA’s
16 factual findings regarding country conditions under the
17 substantial evidence standard. Jian Hui Shao v. Mukasey,
18 546 F.3d 138, 169 (2d Cir. 2008).
19 There is no dispute that Dong’s January 2010 motion to
20 reopen was untimely and number-barred because it was her
21 third motion to reopen and her administrative order of
22 removal became final in 2004. See 8 U.S.C.
2
1 § 1229a(c)(7)(A),(C)(i); 8 C.F.R. § 1003.2(c)(2). Although
2 Dong contends that the time and number limitations do not
3 apply to her motion to reopen as it is “based on changed
4 circumstances arising in the country of nationality,” 8
5 C.F.R. § 1003.2(c)(3)(ii), her arguments are unavailing.
6 In connection with her motion to reopen, Dong submitted
7 letters and supporting documents from Ling Li and Kang Qi
8 Zhang that purported to describe conditions in specific
9 areas of China. Each letter was unsworn and addressed to
10 “Respectful Judge,” the supporting documentation was
11 unauthenticated, and neither Li nor Zhang was from Dong’s
12 home village or explained his connection to Dong. Moreover,
13 certain documents relating to Li indicated he was punished
14 for a “smuggling crime,” not for violating China’s family
15 planning policy as Dong alleged. After considering them,
16 the BIA reasonably declined to accord evidentiary weight to
17 either the letters or the supporting documents. See Xiao Ji
18 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
19 2006) (finding that the weight accorded to the applicant’s
20 evidence in immigration proceedings lies largely within the
21 discretion of the agency); see also Jian Hui Shao, 546 F.3d
22 at 172-73 (concluding that the BIA reasonably determined
3
1 that evidence merely referencing the family planning
2 policy’s mandatory sterilization requirement without any
3 indication that such sterilizations are performed by force
4 is insufficient to establish an objectively reasonable fear
5 of persecution). Because Dong did not submit any other
6 evidence in support of her family planning claim, the BIA
7 did not abuse its discretion in denying her motion to reopen
8 on this basis.
9 The BIA also reasonably refused to accord evidentiary
10 weight to a letter from Dong’s pastor, as it contained only
11 one sentence and failed to identify when Dong began
12 attending church services. See Xiao Ji Chen, 471 F.3d at13 342. Moreover, as the BIA found, Dong's alleged conversion
14 to Christianity represented a change in her personal
15 circumstances, as opposed to changed country conditions in
16 China. See Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir.
17 2008). The current regulatory scheme generally prevents
18 aliens from reopening their removal proceedings by changing
19 their personal circumstances in response to changes in their
20 country. See Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d
21 Cir. 2006). In addition, the record supports the BIA’s
22 determination that, although China has engaged in
4
1 discrimination and abuse of Christians, Dong failed to
2 establish that conditions in China had changed fundamentally
3 since her merits hearing, as required to warrant reopening.
4 See Xiao Ji Chen, 471 F.3d at 342 (holding that the weight
5 afforded to the applicant’s evidence in immigration
6 proceedings lies largely within the discretion of the
7 agency). Therefore, we find no abuse of discretion in the
8 BIA's denial of Dong's motion to reopen.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, the pending motion
11 for a stay of removal in this petition is DENIED as moot.
12 Any pending request for oral argument in this petition is
13 DENIED in accordance with Federal Rule of Appellate
14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
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