Yuan Zee Huang v. Holder

09-2505-ag
Huang v. Holder
BIA
A074 234 675
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 12th day of May, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
_______________________________________
YUAN ZEE HUANG, a.k.a. YONG ZHI HUANG,
Petitioner,
v. 09-2505-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Emily Anne Radford,
Assistant Director; Christopher P.
McGreal, Trial Attorney, Office of
Immigration Litigation, United
States 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.
Yuan Zee Huang, a native and citizen of the People’s
Republic of China, seeks review of a May 28, 2009 order of
the BIA denying his motion to reopen. In re Yuan Zee Huang,
No. A074 234 675 (B.I.A. May 28, 2009). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Generally, we review the BIA’s denial of Huang’s motion
to reopen for abuse of discretion, mindful that such motions
are disfavored. See Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). In this case, however, the fugitive
disentitlement doctrine arguably applies. See generally Nen
Di Wu v. Holder, 617 F.3d 97, 100-01 (2d Cir. 2010); Gao v.
Gonzales, 481 F.3d 173, 175-77 (2d Cir. 2007). On September
8, 1998, the former Immigration and Naturalization Service
(“INS”) sent via certified mail, return receipt requested, a
notice to Huang directing him to surrender for deportation
on October 16, 1998. Huang did not claim the notice or
surrender as directed but instead filed a motion to reopen
2
over ten years later. In an affidavit submitted with his
motion to reopen, Huang did not deny receiving the surrender
notice but asserted that he “decided to stay in the U.S. and
wait for a new opportunity to adjust [his] immigration
status.” Although Huang now contends that the surrender
notice was not delivered, he offers no evidence to overcome
the presumption of delivery that we ordinarily accord to
notices sent via certified mail in immigration proceedings,
e.g., Lopes v. Gonzales, 468 F.3d 81, 85 (2d Cir. 2006)
(notice of removal hearing), even where such notice is
returned unclaimed, see Fuentes-Argueta v. INS, 101 F.3d
867, 871-72 (2d Cir. 1996).1
We need not decide whether to exercise our equitable
discretion pursuant to the fugitive disentitlement doctrine
because, in any event, there is no merit to Huang’s
petition. An alien may file only one motion to reopen and
must do so within 90 days of the final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
1
As the government notes, a copy of the surrender
notice was also sent, and successfully delivered, to
Huang’s last counsel of record. Counsel represented
Huang before the Immigration Court, but Huang proceeded
pro se before the BIA. Thus, it is unclear whether
counsel would have been in a position to inform Huang of
his obligation to surrender.
3
Although Huang’s motion was indisputably untimely, there is
no time or numerical limitation if the alien establishes
materially “changed country conditions arising in the
country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
also 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA did not abuse its discretion in finding that
the birth of Huang’s U.S. citizen son, as well as his
alleged practice of Falun Gong in the United States,
constituted a change in his personal circumstances, rather
than a change in country conditions sufficient to excuse the
untimely filing of his motion to reopen. See Jian Hui Shao
v. Mukasey, 546 F.3d 138, 169-72 (2d Cir. 2008); Wei Guang
Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
With respect to Huang’s claim based on his alleged
violation of the family planning policy, he abandoned any
challenge to the BIA’s dispositive finding that he failed to
establish changed country conditions by not raising the
issue in his brief to this court. See Zhang v. Gonzales,
426 F.3d 540, 546 n.7 (2d Cir. 2005).
With respect to Huang’s Falun Gong claim, there is no
merit to his argument that “while it is true that the
authorities launched [their] campaign of crackdown on Falun
Gong several years ago,” he could establish changed country
4
conditions “so long as the authorities[’] continuous
suppression bears a material relationship to [his]
successive asylum claim.” Pet’r’s Br. 20-21 (emphasis
added). To the contrary, the plain language of the
regulation required Huang to demonstrate a material
change in country conditions since the time of his hearing.
8 C.F.R. § 1003.2(c)(3)(ii). The BIA also reasonably
declined to credit an unauthenticated notice, purportedly
issued by the village committee in Huang’s hometown in
China, based on the Immigration Judge’s underlying adverse
credibility determination. See Qin Wen Zheng v. Gonzales,
500 F.3d 143, 147 (2d Cir. 2007).
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
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