08-2917-ag
Li v. Holder
BIA
A77 993 951
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 9th day of March, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_________________________________________
PING LI,
Petitioner,
v. 08-2917-ag
NAC
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Nan Shen, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr., is substituted automatically for
former Attorney General Michael B. Mukasey as the respondent in this
case.
General, Cindy S. Ferrier, Senior
Litigation Counsel, Kimberly A. Burdge,
Trial Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review is
DENIED.
Petitioner Ping Li, a native and citizen of the People’s
Republic of China, seeks review of the May 16, 2008 order of the
BIA denying her motion to reopen her removal proceedings. In re
Ping Li, No. A77 993 951 (B.I.A. May 16, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history of the 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) (per curiam) (citing INS v. Doherty, 502 U.S.
314, 322-23 (1992)).
The BIA’s regulations require an alien seeking to reopen
proceedings to file a motion to reopen no later than 90 days
after the date on which the final administrative decision was
rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that
Li’s March 2008 motion was untimely. The BIA had issued its
final order in July 2004. There is no time limit for filing a
motion to reopen, however, if it is “based on changed
circumstances arising in the country of nationality or in the
country to which deportation has been ordered,” if the petitioner
provides “evidence [that] is 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). Such changes are
regularly referred to as “changed country conditions” and
distinguished from “changed personal circumstances.” Jian Huan
Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (per curiam).
Here, the BIA did not abuse its discretion in denying Li’s
motion to reopen as untimely because the BIA reasonably
determined that Li failed to submit sufficient evidence of
changed country conditions. See Kaur v. BIA, 413 F.3d 232, 234
(2d Cir. 2005) (per curiam). Li’s motion was based primarily on
her newly-adopted practice of Falun Gong, a change in her
personal circumstances. Cf. Wei Guang Wang v. BIA, 437 F.3d 270,
2
273-74 (2d Cir. 2006). As to Li’s assertion that she
demonstrated error in the agency’s decision because it ignored
evidence of crackdowns on Falun Gong practitioners, we have
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.” Id. at 275 (internal
quotation marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006) (noting that the
Court “presume[s] that [the agency] has taken into account all of
the evidence before [it], unless the record compellingly suggests
otherwise”). Here, the BIA was not required to list all of the
evidence Li submitted in support of her motion when finding it
insufficient to show that country conditions had changed with
respect to Falun Gong practitioners since Li’s 2003 merits
hearing. Indeed, a review of the record reveals that the
evidence Li submitted in support of her motion was largely
identical to that contained in the U.S. State Department’s China
Profile that was in the record before the Immigration Judge in
2003. The agency did not err in finding Li’s evidence
insufficient to meet her “heavy burden” in demonstrating her
eligibility for relief. See INS v. Abudu, 485 U.S. 94, 110
(1988); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 n.6
(2d Cir. 2007) (evidence must “establish that conditions have
indeed changed critically” following her order of removal).
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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