Xiao Lian Weng v. Holder

10-2255-ag
Weng v. Holder
BIA
A073 679 660
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 22nd day of May, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 XIAO LIAN WENG,
14 Petitioner,
15
16 v. 10-2255-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, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Richard M. Evans, Assistant
27 Director; Andrew Oliveira, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 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 Lian Weng, a native and citizen of the
6 People’s Republic of China, seeks review of a May 11, 2010,
7 order of the BIA denying her motion to reopen. In re Xiao
8 Lian Weng, No. A073 676 660 (B.I.A. May 11, 2010). We
9 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. Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). When the BIA considers relevant
14 evidence of country conditions in evaluating a motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
18 I. Changed Country Conditions
19 Here, Weng’s motion to reopen was indisputably time-
20 barred as it was filed more than thirteen years after the
21 BIA’s dismissal of her appeal of her removal order. See
22 8 U.S.C. § 1229a(c)(7)(C). However, there are no time
2
1 limitations on motions to reopen if the alien establishes
2 materially “changed country conditions arising in the
3 country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
4 also 8 C.F.R. § 1003.2(c)(3)(ii).
5 Weng challenges the BIA’s determination regarding
6 changed country conditions, as to the weight it gave to
7 evidence and its determination that conditions had not
8 changed. Contrary to Weng’s position, the agency did not
9 abuse its discretion in giving little weight to letters from
10 her friend and relative, as the letters were vague and were
11 not corroborated by evidence such as a police report,
12 medical records, or accounts from church members. See Xiao
13 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
14 2006) (noting that the weight afforded to the applicant’s
15 evidence lies largely within the discretion of the agency).
16 Nor did the BIA abuse its discretion in analyzing
17 whether Weng established changed country conditions in
18 China. Here, the BIA considered the evidence, provided
19 citations to the record, and concluded that the material
20 submitted by Weng did not support a finding of changed
21 conditions regarding China’s policy affecting Christians.
22 We have held that “[w]hen an applicant moves to reopen his
3
1 case based on worsened country conditions, and introduces
2 previously unavailable reports that materially support his
3 original application, the BIA has a duty to consider these
4 reports and issue a reasoned decision based thereon, whether
5 or not these reports are clearly determinative.” Poradisova
6 v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (emphasis in
7 original). The BIA satisfied its duty and declined to find
8 the evidence persuasive of changed conditions. Accordingly,
9 we find that the BIA did not abuse its discretion. See Jian
10 Hui Shao, 546 F.3d at 171 (“We do not ourselves attempt to
11 resolve conflicts in record evidence, a task largely within
12 the discretion of the agency.”). This finding is consistent
13 with prior cases before this Court. See Yue Rong Zhang v.
14 Holder, 430 Fed. Appx. 33 (2d Cir. 2011). Given that we
15 find that the BIA did not abuse its discretion in concluding
16 that there was no evidence of changed country conditions, we
17 need not rule on Weng’s argument that the BIA stated, and
18 thereby applied, a heightened standard in deciding his prima
19 facie eligibility for relief.
20 We have considered Weng’s arguments on appeal and find
21 them to be without merit. For the foregoing reasons, the
22 petition for review is DENIED. Any pending request for oral
4
1 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). Any pending motion for a stay of
4 removal in this petition is DISMISSED as moot
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
5