Xiao Fang Liu v. Holder

13-1661
Liu v. Holder
BIA
A078 161 283
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 25th day of June, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO FANG LIU, AKA SHAO FUN LUI,
14 Petitioner,
15
16 v. 13-1661
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
24 LLC, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; John W. Blakeley, Senior
28 Litigation Counsel; Stephen M.
29 Elliott, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Xiao Fang Liu, a native and citizen of
6 China, seeks review of an April 16, 2013 decision of the BIA
7 denying her untimely and number-barred motion to reopen. In
8 re Xiao Fang Liu, No. A078 161 283 (B.I.A. Apr. 16, 2013).
9 We assume the parties’ familiarity with the underlying facts
10 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) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered and may file only one
17 such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Liu’s 2012 motion
19 was untimely and number barred because she previously sought
20 reopening in 2010 and her order of removal became final in
21 2005. See 8 U.S.C. § 1101(a)(47)(B). Liu contends,
22 however, that her recent conversion to Christianity in the
23 United States, worsened conditions for underground church
2
1 members in China, and heightened enforcement of China’s
2 family planning laws constitute materially changed
3 conditions excusing her motion from the applicable time and
4 number limitations.
5 The BIA did not abuse its discretion in denying Liu’s
6 motion for failure to demonstrate a material change in
7 country conditions. Initially, the BIA correctly determined
8 that Liu’s religious conversion in the United States was a
9 self-induced change in personal circumstances rather than a
10 change in country conditions. See Wei Guang Wang v. BIA,
11 437 F.3d 270, 273-74 (2d Cir. 2006). The BIA also
12 reasonably determined that Liu was unable to establish
13 materially changed conditions because she failed to support
14 her motion with any evidence of conditions for Chinese
15 Christians at the time of her 2004 merits hearing. See
16 Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)
17 (“In determining whether evidence accompanying a motion to
18 reopen demonstrates a material change in country conditions
19 that would justify reopening, [the BIA] compare[s] the
20 evidence of country conditions submitted with the motion to
21 those that existed at the time of the merits hearing
22 below.”). Lastly, the BIA reasonably determined that
3
1 conditions in China had not materially changed because the
2 evidence in the record reflected ongoing repression of
3 underground churches since at least 1998. See Matter of
4 S-Y-G-, 24 I. & N. Dec. at 257 (observing that “[c]hange
5 that is incremental or incidental does not meet the
6 regulatory requirements for late motions” to reopen).
7 Because the BIA’s inference that conditions in China have
8 not materially changed “is tethered to the evidentiary
9 record, we will accord deference to the finding.” See Siewe
10 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).
11 The BIA also properly found that Liu failed to
12 demonstrate materially changed country conditions on the
13 basis of her individualized family planning evidence. See
14 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
15 Cir. 2006) (observing that the weight accorded to the
16 applicant’s evidence in immigration proceedings lies largely
17 within the discretion of the agency). Liu’s contention that
18 the BIA erred by discounting her family planning notice as
19 unauthenticated under 8 C.F.R. § 1287.6 is misplaced because
20 the notice was not authenticated by any means. See Cao He
21 Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-06 (2d Cir.
22 2005) (noting that while the agency may err in declining to
4
1 consider a document solely for a failure to authenticate
2 under 8 C.F.R. § 1287.6, the agency may nevertheless decline
3 to consider a document that is not authenticated by any
4 means). In addition, the BIA reasonably determined that
5 Liu’s letters from Chinese nationals, attesting to forced
6 sterilizations after the birth of children in China, did not
7 establish materially changed conditions because they did not
8 discuss similarly situated individuals, i.e., Chinese
9 nationals returning with U.S. citizen children. See Jian
10 Hui Shao, 546 F.3d at 160-61, 170-72.
11 Lastly, we decline to consider Liu’s argument that she
12 established her prima facie eligibility for relief, which
13 the BIA did not reach. See INS v. Bagamasbad, 429 U.S. 24,
14 25 (1976) (“As a general rule courts and agencies are not
15 required to make findings on issues the decision of which is
16 unnecessary to the results they reach.”).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
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1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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