11-2686-ag
Gao v. Holder
BIA
A072 473 623
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 27th day of April, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT A. KATZMANN,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 SHIN YI GAO, AKA QUAN GUAN GAO,
14 Petitioner,
15
16 v. 11-2686-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Yee Ling Poon; Robert Duk-Hwan Kim,
24 Law Offices of Yee Ling Poon, LLC,
25 New York, N.Y.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Luis E. Perez, Senior
29 Litigation Counsel; Rachel Browning,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 Shin Yi Gao, a native and citizen of the
6 People’s Republic of China, seeks review of a June 7, 2011,
7 decision of the BIA denying his motion to reopen his
8 deportation proceedings. In re Shin Yi Gao, No. A072 473
9 623 (B.I.A. June 7, 2011). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 in this case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006) (per curiam). An alien seeking to reopen
15 proceedings is required to file a motion to reopen no later
16 than 90 days after the date on which the final
17 administrative decision was rendered and is permitted to
18 file only one such motion. See 8 U.S.C. §§ 1229a(c)(7)(A),
19 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Gao’s
20 fourth motion to reopen, filed in September 2010, was
21 untimely and number-barred because the immigration judge
22 issued a final order of removal in 1993. See 8 U.S.C. §
23 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
2
1 Gao contends, however, that he established a material
2 change in conditions excusing the untimely and number-barred
3 filing of his motion to reopen based on his recent
4 conversion to Christianity and the Chinese government’s
5 increased suppression of religious freedom. See 8 U.S.C.
6 § 1229a(c)(7)(C)(ii). We conclude that the BIA’s denial of
7 Gao’s motion to reopen as untimely and number-barred was not
8 an abuse of discretion.
9 Pursuant to 8 U.S.C. § 1229a(c)(7)(B), the movant bears
10 the burden of supporting his motion to reopen with relevant
11 evidence. See INS v. Abudu, 485 U.S. 94, 110 (1988). “In
12 determining whether evidence accompanying a motion to reopen
13 demonstrates a material change in country conditions that
14 would justify reopening, [the BIA] compares the evidence of
15 country conditions submitted with the motion to those that
16 existed at the time of the merits hearing below.” In re
17 S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007); see 8 C.F.R.
18 § 1003.2(c)(3)(ii). Because Gao failed to properly support
19 his motion with any evidence describing conditions for
20 Chinese Christians at the time of his 1993 merits hearing,
21 the BIA’s finding of no materially changed country
22 conditions is supported by substantial evidence. See id.;
23 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
3
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 DENIED 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
11
12
4