Gou-Hui Liu v. Lynch

13-3771
Liu v. Lynch
BIA
A072 766 174
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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of November, two thousand fifteen.
PRESENT: REENA RAGGI,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
GOU-HUI LIU, AKA GOU HUI LIU,
Petitioner,
v. 13-3771
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Nataliya I. Gavlin, Gavlin & Associates, P.C., New
York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General; Holly M.
Smith, Senior Litigation Counsel; Edward C. Durant,
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 Gou-Hui Liu, a native and citizen of China, seeks review of a September
26, 2013 decision of the BIA denying his motion to reopen his exclusion proceedings. In re
Gou-Hui Liu, No. A072 766 174 (B.I.A. Sept. 26, 2013). We assume the parties’ familiarity
with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of
the Supreme Court’s admonition that such motions are “‘disfavored.’” See Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322–23 (1992)).
An alien seeking to reopen proceedings is required to file a motion to reopen no later than
ninety days after the date on which the final administrative decision was rendered and may
file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).
There is no dispute that Liu’s 2012 motion was untimely and number barred because he
previously sought reopening in 1998 and his order of removal became final in 2001. 8
U.S.C. § 1101(a)(47)(B)(i).
These limitations, however, do not apply if the motion is “based on changed country
conditions arising in the country of nationality . . . if such evidence is material and was not
available and would not have been discovered or presented at the previous hearing.” 8
U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Failure to offer such
evidence is, therefore, a proper ground for denial, as is the movant’s failure to establish a
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prima facie case for the underlying substantive relief sought. See INS v. Abudu, 485 U.S.
94, 104–05 (1988). 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. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not abuse its discretion in denying Liu’s motion for failure to establish
his prima facie eligibility for relief. See Jian Hui Shao v. Mukasey, 546 F.3d at 168 (“[An
alien’s] ability to secure reopening depends on a demonstration of prima facie eligibility for
[relief], which means she must show a ‘realistic chance’ that she will be able to obtain such
relief.” (citations omitted)). The BIA reasonably relied on Liu’s failure to provide evidence
that Chinese authorities are aware or likely to become aware of his conversion to Christianity
and intention to attend a house church if he returns to China. See Hongsheng Leng v.
Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
The BIA also reasonably found Liu’s argument that he would come to the Chinese
authorities’ attention because of his past family-planning violations unpersuasive, given that
the Immigration Judge had previously denied Liu’s claim due to his lack of credibility. See
Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005).
The BIA also reasonably determined that Liu did not establish his prima facie
eligibility for relief because the evidence submitted with his motion did not provide
information specific to Liu’s home province of Fujian. Liu argues in his counseled brief that
the evidence of religious persecution in China applies to China generally, including Fujian.
The BIA, however, acted within its discretion in concluding that, in light of other evidence
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submitted by Liu indicating that the degree of religious persecution in China “var[ies]
significantly from region to region,” A.R. 74; see also id. at 78–79, such general evidence
is insufficient to satisfy Liu’s prima facie burden, see Jian Hui Shao v. Mukasey, 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.”).
Because the agency did not abuse its discretion in denying Liu’s motion for failure to
demonstrate his prima facie eligibility for relief, we decline to consider his challenge to the
agency’s alternative country conditions finding. See INS v. Bagamasbad, 429 U.S. 24, 25
(1976).
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 of Court
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