Xiao Lian Weng v. Holder

10-2255-ag Weng v. Holder BIA A073 679 660 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 22nd day of May, two thousand twelve. 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 ROBERT D. SACK, 10 Circuit Judges. 11 _______________________________________ 12 13 XIAO LIAN WENG, 14 Petitioner, 15 16 v. 10-2255-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; Richard M. Evans, Assistant 27 Director; Andrew Oliveira, Trial 28 Attorney, Office of Immigration 29 Litigation, Civil Division, United 30 States Department of Justice, 31 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 Xiao Lian Weng, a native and citizen of the 6 People’s Republic of China, seeks review of a May 11, 2010, 7 order of the BIA denying her motion to reopen. In re Xiao 8 Lian Weng, No. A073 676 660 (B.I.A. May 11, 2010). 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. Kaur v. BIA, 413 F.3d 232, 233 (2d 13 Cir. 2005) (per curiam). When the BIA considers relevant 14 evidence of country conditions in evaluating a motion to 15 reopen, we review the BIA’s factual findings under the 16 substantial evidence standard. See Jian Hui Shao v. 17 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 18 I. Changed Country Conditions 19 Here, Weng’s motion to reopen was indisputably time- 20 barred as it was filed more than thirteen years after the 21 BIA’s dismissal of her appeal of her removal order. See 22 8 U.S.C. § 1229a(c)(7)(C). However, there are no time 2 1 limitations on motions to reopen if the alien establishes 2 materially “changed country conditions arising in the 3 country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 4 also 8 C.F.R. § 1003.2(c)(3)(ii). 5 Weng challenges the BIA’s determination regarding 6 changed country conditions, as to the weight it gave to 7 evidence and its determination that conditions had not 8 changed. Contrary to Weng’s position, the agency did not 9 abuse its discretion in giving little weight to letters from 10 her friend and relative, as the letters were vague and were 11 not corroborated by evidence such as a police report, 12 medical records, or accounts from church members. See Xiao 13 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 14 2006) (noting that the weight afforded to the applicant’s 15 evidence lies largely within the discretion of the agency). 16 Nor did the BIA abuse its discretion in analyzing 17 whether Weng established changed country conditions in 18 China. Here, the BIA considered the evidence, provided 19 citations to the record, and concluded that the material 20 submitted by Weng did not support a finding of changed 21 conditions regarding China’s policy affecting Christians. 22 We have held that “[w]hen an applicant moves to reopen his 3 1 case based on worsened country conditions, and introduces 2 previously unavailable reports that materially support his 3 original application, the BIA has a duty to consider these 4 reports and issue a reasoned decision based thereon, whether 5 or not these reports are clearly determinative.” Poradisova 6 v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (emphasis in 7 original). The BIA satisfied its duty and declined to find 8 the evidence persuasive of changed conditions. Accordingly, 9 we find that the BIA did not abuse its discretion. See Jian 10 Hui Shao, 546 F.3d at 171 (“We do not ourselves attempt to 11 resolve conflicts in record evidence, a task largely within 12 the discretion of the agency.”). This finding is consistent 13 with prior cases before this Court. See Yue Rong Zhang v. 14 Holder, 430 Fed. Appx. 33 (2d Cir. 2011). Given that we 15 find that the BIA did not abuse its discretion in concluding 16 that there was no evidence of changed country conditions, we 17 need not rule on Weng’s argument that the BIA stated, and 18 thereby applied, a heightened standard in deciding his prima 19 facie eligibility for relief. 20 We have considered Weng’s arguments on appeal and find 21 them to be without merit. For the foregoing reasons, the 22 petition for review is DENIED. Any pending request for oral 4 1 argument in this petition is DENIED in accordance with 2 Federal Rule of Appellate Procedure 34(a)(2) and Second 3 Circuit Local Rule 34.1(b). Any pending motion for a stay of 4 removal in this petition is DISMISSED as moot 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 5