11-2452-ag
Yang v. Holder
BIA
A099 936 305
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 11th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIUHUI YANG,
14 Petitioner,
15
16 v. 11-2452-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; James E. Grimes, Senior
27 Litigation Counsel; Sarah Maloney,
*
The Clerk of the Court is respectfully directed to
amend the caption to read as shown above.
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is DENIED.
9 Xiuhui Yang, a native and citizen of the People’s
10 Republic of China, seeks review of a June 8, 2011 decision
11 of the BIA denying her motion to reopen. In re Xiuhui Yang,
12 No. A099 936 305 (B.I.A. June 8, 2011). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 We review the BIA’s denial of Yang’s motion to reopen
16 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). Where, as here, the BIA considers relevant
18 evidence of country conditions in evaluating the motion to
19 reopen, we review the BIA’s factual findings under the
20 substantial evidence standard. See Jian Hui Shao v.
21 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
22 An alien may file only one motion to reopen and must do
23 so within 90 days of the agency’s final administrative
24 decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
2
1 § 1003.2(c)(2). Although Yang’s motion was indisputably
2 untimely because it was filed more than two years after the
3 agency’s final order of removal, see 8 U.S.C.
4 § 1229a(c)(7)(C)(i), there is no time limitation for filing
5 a motion to reopen to apply or reapply for asylum if it is
6 “based on changed country conditions arising in the country
7 of nationality or the country to which removal has been
8 ordered, if such evidence is material and was not available
9 and would not have been discovered or presented at the
10 previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
11 also 8 C.F.R. § 1003.2(c)(3)(ii). A change in personal
12 circumstances in the United States does not constitute a
13 change in country conditions. See Li Yong Zheng v. U.S.
14 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
15 Here, the BIA did not abuse its discretion in finding
16 that Yang failed to establish such circumstances based on
17 her newly-commenced practice of Christianity in the United
18 States. Moreover, and contrary to Yang’s argument, the BIA
19 did not find that her motion to reopen was based solely on
20 her changed personal circumstances because it also
21 considered whether she had demonstrated a material change in
22 conditions in China since the time of her 2008 merits
3
1 hearing and reasonably concluded that she had not. See
2 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
3 Indeed, the BIA—referencing, among other documents, various
4 State Department reports—reasonably found that Yang’s
5 evidence did not show an intensification in the persecution
6 of Christians in China since Yang’s 2008 proceedings, but
7 rather reflected a continuation of the policy of the Chinese
8 government of suppression of unsanctioned religious
9 activity. See In re S-Y-G-, 24 I. & N. Dec. 247, 253
10 (B.I.A. 2007). Although a 2009 ChinaAid.org Report and
11 several newspaper articles indicated an increase in the
12 persecution of Christians in some areas of China, the BIA
13 did not abuse its discretion in giving more weight to the
14 State Department reports, as there was no evidence to
15 demonstrate the reliability of the other evidence. See Xiao
16 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d
17 Cir. 2006).
18 Accordingly, because substantial evidence supports the
19 BIA’s conclusion that Yang failed to establish a material
20 change in conditions in China, the BIA did not abuse its
21 discretion in denying her motion to reopen as untimely.
22 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2),
23 (c)(3)(ii).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2) and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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