Yanlin Weng v. Holder

11-2864-ag
Weng v. Holder
BIA
A097 743 136
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 1st day of June, two thousand twelve.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YANLING WENG, AKA YANLIN WENG,
14 Petitioner,
15
16 v. 11-2864-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Susan Bennett Green, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Yanling Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a June 21, 2011,
7 decision of the BIA denying her motion to reopen her removal
8 proceedings. In re Yanling Weng, No. A097 743 136 (B.I.A.
9 June 21, 2011). We assume the parties’ familiarity with the
10 underlying facts and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien seeking to reopen proceedings is
14 required to file a motion to reopen no later than 90 days
15 after the date on which the final administrative decision
16 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
17 § 1003.2(c)(2). There is no dispute that Weng’s motion to
18 reopen, filed in November 2010, was untimely because the BIA
19 issued a final order of removal in December 2005.
20 Weng contends, however, that her recent conversion to
21 Christianity and church attendance in the United States,
22 coupled with the Chinese government’s crackdown on
23 underground churches and unregistered religious groups in
2
1 Fujian Province, constitutes a material change in country
2 conditions, excusing the untimeliness of her motion to
3 reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). We conclude
4 that the BIA’s denial of Weng’s motion to reopen as untimely
5 was not an abuse of discretion.
6 As the BIA determined, Weng’s religious conversion and
7 church attendance in the United States constitute
8 self-induced changes in personal circumstances, which are
9 insufficient to excuse the untimeliness of her motion to
10 reopen. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d
11 Cir. 2006). Although Weng argues that the BIA abused its
12 discretion by focusing on her conduct in the United States
13 rather than on conditions in China, the time limitation on
14 motions to reopen may not be suspended entirely because of a
15 “self-induced change in personal circumstances” that is
16 “entirely of [the applicant’s] own making after being
17 ordered to leave the United States.” Id.; see also Yuen Jin
18 v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).
19 Moreover, the BIA’s determination that Weng failed to
20 establish a material change in country conditions in China
21 is supported by substantial evidence. See Jian Hui Shao v.
22 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). In considering
3
1 conditions in China, the BIA reasonably relied on evidence
2 in the record at the time of Weng’s merits hearing to
3 conclude that “at best, [there are] continuing problems for
4 unregistered Protestant groups in Fujian Province rather
5 than any changed circumstances there.” In re Yanling Weng,
6 No. A097 743 136 (B.I.A. June 21, 2011). For example, as
7 noted by the BIA, the United States Department of State’s
8 June 2004 report China - Profile of Asylum Claims and
9 Country Conditions reflects that, at the time of Weng’s
10 merits hearing in 2004, repression of underground churches
11 and unregistered religious groups was widespread,
12 particularly in Weng’s home province of Fujian. Id.
13 Weng’s argument that the BIA “cherry-picked” evidence
14 in support of its country conditions finding while ignoring
15 other evidence demonstrating a material change in country
16 conditions is without merit. See Jian Hui Shao, 546 F.3d at
17 171. Indeed, many of the very same country conditions
18 materials cited by Weng as evidencing a material change in
19 country conditions also reflect continuing problems for
20 underground churches and unregistered religious groups in
21 China. Given that the task of resolving conflicts in the
22 record evidence lies “largely within the discretion of the
4
1 agency,” id., and the agency is not required to “expressly
2 parse or refute on the record each individual argument or
3 piece of evidence offered by the petitioner,” id. at 169
4 (internal quotation marks and citation omitted), the record
5 does not compellingly suggest that the BIA ignored any
6 evidence, see Xiao Ji Chen v. U.S. Dep’t of Justice, 471
7 F.3d 315, 336 n.17 (2d Cir. 2006) (noting that the agency is
8 presumed to have “taken into account all of the evidence
9 before [it], unless the record compellingly suggests
10 otherwise”).
11 Although Weng argues that the BIA improperly discounted
12 her letter from a fellow Christian in Fujian Province, which
13 described a July 2010 raid on an underground church, the
14 weight afforded to the applicant’s evidence lies largely
15 within the discretion of the agency. See id. at 342. In
16 considering Weng’s letter, the BIA reasonably concluded
17 that, without the inclusion of details such as the frequency
18 with which such raids occur, the letter was insufficient to
19 demonstrate a widespread practice or a material change in
20 country conditions.
21 Because the BIA did not reach the issue of Weng’s prima
22 facie eligibility for relief, we decline to consider Weng’s
23 arguments concerning the adequacy of her prima facie
24 showing.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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