Xiu Qin Tang v. Holder

09-3808-ag
Pan v. Holder
BIA
A078 206 563
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 3 rd day of September, two thousand ten.
5
6 PRESENT:
7 ROGER J. MINER,
8 GUIDO CALABRESI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 Yu Feng Pan,
14
15 Petitioner,
16
17 v. 09-3808-ag
18 NAC
19
20 ERIC H. HOLDER, JR., U.S. ATTORNEY
21 GENERAL,
22
23 Respondent.
24 _______________________________________
25
26 FOR PETITIONER: Theodore N. Cox, New York, NY.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, Michelle G. Latour,
30 Assistant Director, R. Alexander
31 Goring, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Yu Feng Pan, a native and citizen of the People’s
10 Republic of China, seeks review of an August 17, 2009 order
11 of the BIA denying her motion to reopen her removal
12 proceedings. In re Pan, No. A078 206 563 (B.I.A. Aug. 17,
13 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history of the case.
15 We review the BIA’s denial of a motion to reopen for
16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). An alien who has been ordered removed may
18 file one motion to reopen but must do so within 90 days of
19 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
20 Here, the BIA properly denied Pan’s motion to reopen as
21 untimely and number-barred because she filed it more than
22 six years after the entry of her December 2002 final order
23 of removal, and it was the second motion to reopen that she
24 filed with the BIA. See id.; 8 C.F.R. § 1003.2(c)(2).
25 Although the time and number limitations may be excused
2
1 when the movant alleges changed country conditions, 8 U.S.C.
2 § 1229a(c)(7)(C)(ii), the BIA reasonably found that the
3 evidence Pan submitted failed to demonstrate that country
4 conditions in China had changed since her merits hearing, at
5 which she did not appear and was ordered removed in
6 absentia. Indeed, the BIA may deny a motion to reopen if
7 the movant has not introduced previously unavailable,
8 material evidence. INS v. Abudu, 485 U.S. 94, 104-05
9 (1988). As the BIA found, although the evidence Pan
10 submitted was previously unavailable, it was not material
11 because it did not compare the current conditions in China
12 with the conditions that existed for Christians at the time
13 of Pan’s hearing. See Matter of S-Y-G-, 24 I. & N. Dec 247,
14 253 (B.I.A. 2007) (finding that “[i]n determining whether
15 evidence accompanying a motion to reopen demonstrates a
16 material change in country conditions that would justify
17 reopening, we compare the evidence of country conditions
18 submitted with the motion to those that existed at the time
19 of the merits hearing below”); see also Yuen Jin v. Mukasey,
20 538 F.3d 143, 155 (2d Cir. 2008) (holding that the existing
21 legal system does not permit aliens who have been ordered
22 removed “to disregard [those] removal orders and remain in
23 the United States long enough to change their personal
3
1 circumstances (e.g., by having children or practicing a
2 persecuted religion) and initiate new proceedings via a new
3 asylum application”); Wei Guang Wang v. B.I.A., 437 F.3d
4 270, 274 (2d Cir. 2006) (noting that “apparent gaming of the
5 system in an effort to avoid [removal] is not tolerated by
6 the existing regulatory scheme”). Thus, substantial
7 evidence supports the BIA’s conclusion that Pan failed to
8 establish changed country conditions in China. See 8 C.F.R.
9 § 1003.2(c)(2); (c)(3)(ii); see also Jian Hui Shao v.
10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
11 Furthermore, a reasonable fact-finder would not be
12 compelled to conclude that the BIA ignored any material
13 evidence. See Wei Guang Wang, 437 F.3d at 275; Xiao Ji Chen
14 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
15 2006). Here, given the BIA’s references to the
16 documentation submitted with the motion to reopen, the
17 record demonstrates that the BIA both considered Pan’s
18 evidence and made reasonable findings based on the record.
19 See Wei Guang Wang, 437 F.3d at 275 (rejecting the notion
20 that the agency “must expressly parse or refute on the
21 record each individual argument or piece of evidence offered
22 by the petitioner” (internal quotation marks omitted)); see
23 also Xiao Ji Chen, 471 F.3d at 337 n.17 (“[W]e presume that
4
1 an IJ has taken into account all of the evidence before him,
2 unless the record compellingly suggests otherwise.”).
3 Accordingly, because Pan was required to show changed
4 country conditions in order to obtain reopening of her
5 proceedings, the BIA did not abuse its discretion in denying
6 her motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
18
5