Yun Mei Fu v. Holder

10-2296-ag
Fu v. Holder
BIA
A072 745 135
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2nd day of September, two thousand eleven.
PRESENT:
JOHN M. WALKER, JR.,
PIERRE N. LEVAL,
ROSEMARY S. POOLER,
Circuit Judges.
_____________________________________
YUN MEI FU,
Petitioner,
v. 10-2296-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Stuart Altman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Jennifer L. Lightbody, Senior Litigation
Counsel; Edward E. Wiggers, Trial Attorney,
Office of Immigration Litigation, Civil
Division, U.S. Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Yun Mei Fu, a native and citizen of the People’s Republic
of China, seeks review of a May 17, 2010, order of the BIA
denying her motion to reopen. In re Yun Mei Fu, No. A072 745
135 (B.I.A. May 17, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of 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.” Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,
322-23 (1992)). There is no dispute that Fu’s November 2009
motion to reopen was untimely and numerically barred because
her administrative order of removal became final after she
failed to voluntarily depart the United States in 1998, and
she had previously filed motions to reopen in 2005 and 2008.
See 8 C.F.R. § 1003.2(c)(2). Although Fu contends that the
time and number limitations do not apply to her motion to
reopen as it is “based on changed circumstances arising in the
country of nationality” and the evidence she submitted “is
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material and was not available and could not have been
discovered or presented at the previous hearing,” 8 C.F.R.
§ 1003.2(c)(3)(ii), her arguments are unavailing.
As an initial matter, there is no indication that the BIA
ignored any material evidence she submitted. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (recognizing
that the Court has rejected the notion that the agency must
“expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner”
(quoting Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.
2007)); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
“has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”).
Moreover, contrary to Fu’s argument, the BIA reasonably
determined that, although China has engaged in discrimination
and abuse against Christians, Fu failed to establish that
conditions in China and her home province of Fujian had
changed fundamentally since her appearance before the
immigration court, as required to warrant reopening. When the
BIA considers relevant evidence of country conditions in
evaluating a motion to reopen, this Court reviews the BIA’s
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factual findings under the substantial evidence standard.
Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008);
see Xiao Ji Chen, 471 F.3d at 342 (noting that the weight
afforded to the applicant’s evidence in immigration
proceedings lies largely within the discretion of the IJ).
Because the BIA reasonably found that Fu failed to establish
changed country conditions sufficient to warrant reopening,
its denial of Fu’s motion was not an abuse of discretion.
For the foregoing reasons, the petition for review
is DENIED. As we have completed our review, the pending
motion for a stay of removal in this petition is DENIED 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
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