DocketNumber: 12-4266 NAC
Citation Numbers: 543 F. App'x 64
Judges: Calabresi, Guido, Hall, Peter, Ralph, Winter
Filed Date: 11/5/2013
Status: Non-Precedential
Modified Date: 8/31/2023
12-4266 Kong v. Holder BIA A093 409 907 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 5th day of November, two thousand thirteen. 5 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 PETER W. HALL, 10 Circuit Judges. 11 _____________________________________ 12 13 YANG KONG, 14 Petitioner, 15 16 v. 12-4266 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Charles Christophe, Christophe Law 24 Group, PC, New York, NY. 25 26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 27 Attorney General; David V. Bernal, 28 Assistant Director, Margaret Kuehne 29 Taylor, Trial 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 Yang Kong, a native and citizen of China, 6 seeks review of an October 3, 2012 decision of the BIA 7 denying his motion to reopen his removal proceedings. In re 8 Yang Kong, No. A093 409 907 (B.I.A. Oct. 3, 2012). 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. 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. See 8 U.S.C. § 1229a(c)(7)(C); 17 8 C.F.R. § 1003.2(c)(2). There is no dispute that Kong’s 18 motion to reopen, filed in March 2012, was untimely because 19 the BIA issued a final order of removal in April 2010. 20 Kong contends, however, that his conversion to 21 Christianity in the United States, his recent membership in 22 the Chinese Democratic Party (“CDP”), and the Chinese 2 1 government’s awareness of his political activities in the 2 United States, constitute materially changed conditions 3 excusing his untimely motion. See 8 U.S.C. 4 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). 5 As to Kong's CDP claim, the BIA did not abuse its 6 discretion in finding that he failed to demonstrate his 7 prima facie eligibility for relief because Kong failed to 8 support or otherwise corroborate his CDP membership with 9 credible evidence. See Hongsheng Leng v. Mukasey,528 F.3d 10
135, 142-43 (2d Cir. 2008); see also Jian Hui Shao v. 11 Mukasey,546 F.3d 138
, 168 (2d Cir. 2008) (recognizing that 12 an alien’s “ability to secure reopening depends on a 13 demonstration of prima facie eligibility for [relief], which 14 means []he must show a realistic chance that []he will be 15 able to obtain such relief”) (internal quotation marks and 16 citation omitted). 17 Contrary to Kong’s contention, the BIA did not abuse 18 its discretion in finding the unsworn letter from his wife 19 to be unreliable, given the agency’s prior determination 20 that Kong was not a credible witness. See Qin Wen Zheng v. 21 Gonzales,500 F.3d 143
, 147-49 (2d Cir. 2007) (concluding 22 that an adverse credibility finding provided reasonable 3 1 basis for rejecting the authenticity of an unauthenticated 2 document submitted by the party). While Kong is correct 3 that the BIA did not specifically address his affidavit, 4 this Court does “not demand that the BIA expressly parse or 5 refute on the record each individual argument or piece of 6 evidence offered by the petitioner,” Jian Hui Shao,546 F.3d 7
at 169 (internal quotation marks and citation omitted), and 8 we presume that the agency “has taken into account all of 9 the evidence before [it], unless the record compellingly 10 suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 11471 F.3d 315
, 338 n. 17 (2d Cir. 2006). Here, nothing 12 suggests that the agency did not consider the affidavit and, 13 in light of the adverse credibility finding, the BIA did not 14 act unreasonably by declining to rely on it. See Qin Wen 15Zheng, 500 F.3d at 147-48
. 16 With respect to Kong’s Christianity claim, none of 17 Kong’s evidence addressed China’s treatment of Christians at 18 the time of his merits hearing. This was fatal to his 19 motion. See In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 20 2007) (“In determining whether evidence accompanying a 21 motion to reopen demonstrates a material change in country 22 conditions that would justify reopening, [the BIA] 4 1 compare[s] the evidence of country conditions submitted with 2 the motion to those that existed at the time of the merits 3 hearing below.”). 4 While Kong contends that the newspaper articles he 5 submitted demonstrated worsening conditions for Christians 6 in China, the general statements in these articles that 7 Chinese authorities had engaged in a “crackdown” do not 8 reflect the conditions that existed in 2008, or provide 9 material evidence of a change in country conditions. See 10 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 11 Finally, nothing in the United States Department of State 12 report compels the conclusion that the treatment of 13 Christians in China has worsened since 2008. See 8 U.S.C. 14 §1252(b)(4)(B) (the BIA’s factual findings are “conclusive 15 unless any reasonable adjudicator would be compelled to 16 conclude to the contrary”). 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 22 oral argument in this petition is DENIED in accordance with 23 Federal Rule of Appellate Procedure 34(a)(2), and Second 5 1 Circuit Local Rule 34.1(b). 2 FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 6