10-3502-ag
Lu v. Holder
BIA
A073 767 339
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 12th day of April, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
ROSEMARY S. POOLER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
QICAL LU,
Petitioner,
v. 10-3502-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, of counsel for Michael
Brown, Law Offices of Michael Brown,
New York, N.Y.
FOR RESPONDENT: Sarah Maloney, Trial Attorney for
Tony West, Assistant Attorney
General & James E. Grimes, Senior
Litigation Counsel, Office of
Immigration Litigation, Civil
Division, 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.
Qical Lu, a native and citizen of China, seeks review
of an August 10, 2010, decision of the BIA denying his
motion to reopen. In re Qical Lu, No. A073 767 339 (B.I.A.
Aug. 10, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). Where the BIA evaluates country conditions
evidence, we review that determination for substantial
evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008).
There is no dispute that Lu’s October 2009 motion to
reopen was untimely and number-barred, because it was his
second such motion and because the BIA entered a final
2
administrative order of removal in May 1998. See 8 U.S.C.
§ 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2). However, the
time and number limitations do not apply to a motion to
reopen asylum proceedings that is “based on changed
circumstances arising in the country of nationality or in
the country to which deportation has been ordered, if such
evidence 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); 8 U.S.C. § 1229a(c)(7)(C)(ii).
The BIA did not abuse its discretion in concluding that
Lu’s Falun Gong activities in the United States constituted
a change in personal circumstances rather than a change in
conditions “arising in the country of nationality,” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), and
therefore were not sufficient to overcome the time and
number limitations, see, e.g., Wei Guang Wang v. BIA, 437
F.3d 270, 272-74 (2d Cir. 2006) (making clear that the time
and numerical limitations on motions to reopen may not be
suspended because of a “self-induced change in personal
circumstances” that is “entirely of [the applicant’s] own
making after being ordered to leave the United States”); Li
Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-131
3
(2d Cir. 2005) (holding that a change in personal
circumstances does not qualify as “changed circumstances” so
as to invoke the exception provided by 8 C.F.R.
§ 1003.2(c)(3)(ii)).
In addition, Lu’s argument that the BIA abused its
discretion in declining to credit the unauthenticated
village notice he submitted is unavailing. The BIA did not
require that the village notice be formally authenticated,
see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-
05 (2d Cir. 2005), but rather observed that it had not been
authenticated and was unsigned, and that its reliability was
therefore doubtful, particularly since Lu previously had
been found not credible. See Qin Wen Zheng v. Gonzales, 500
F.3d 143, 149 (2d Cir. 2007) (concluding that the BIA did
not abuse its discretion in declining to credit a purported
village notice where the document was not authenticated and
the alien had been found not credible). Because Lu failed to
otherwise demonstrate that Chinese authorities were aware or
likely to become aware of his Falun Gong activities – or to
otherwise establish changed country conditions – the BIA did
not abuse its discretion in denying his untimely motion.
4
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5