Yong Biao Liu v. Holder

11-3256-ag Liu v. Holder BIA A073 647 232 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 Richard C. Lee United 3 States Courthouse, 141 Church Street, in the City of New 4 Haven, Connecticut, on the 25th day of May, two thousand 5 twelve. 6 7 PRESENT: 8 DENNIS JACOBS, 9 Chief Judge, 10 JON O. NEWMAN, 11 ROBERT D. SACK, 12 Circuit Judges. 13 _______________________________________ 14 15 YONG BIAO LIU, 16 Petitioner, 17 18 v. 11-3256-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent. 23 _______________________________________ 24 25 FOR PETITIONER: Thomas D. Barra, New York, New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Melissa Neiman-Kelting, 29 Senior Litigation Counsel; Ilissa M. 30 Gould, 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 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 4 review is DENIED. 5 Yong Biao Liu, a native and citizen of the People’s 6 Republic of China, seeks review of a July 14, 2011, decision 7 of the BIA denying his motion to reopen. In re Yong Biao 8 Liu, No. A073 647 232 (B.I.A. July 14, 2011). We assume the 9 parties’ familiarity with the underlying facts and 10 procedural history of this case. 11 We review the BIA’s denial of Liu’s motion to reopen 12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006). An alien may file only one motion to reopen 14 and must do so within 90 days of the agency’s final 15 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 16 8 C.F.R. § 1003.2(c)(2). Although Liu’s motion was 17 indisputably untimely and number-barred because it was filed 18 more than eight years after the agency’s final order of 19 deportation and it was his second motion to reopen, 20 see 8 U.S.C. § 1229a(c)(7)(A),(C)(i), there is no time or 21 numerical limitation for filing a motion to reopen if it is 22 “based on changed country conditions arising in the country 23 of nationality or the country to which removal has been 2 1 ordered, if such evidence is material and was not available 2 and would not have been discovered or presented at the 3 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 4 8 C.F.R. § 1003.2(c)(3)(ii). 5 Here, the BIA did not abuse its discretion in finding 6 that the evidence Liu submitted in support of his motion to 7 reopen was not material to his claim that he feared 8 persecution if returned to China on account of his “Falun 9 Gong identity,” as the evidence did not establish that Liu 10 was in fact a practitioner of Falun Gong. See INS v. Abudu, 11 485 U.S. 94, 104-05 (1988) (recognizing that a movant’s 12 failure to produce material evidence is an independent basis 13 for the denial of a motion to reopen). Indeed, as the BIA 14 found, neither the affidavit or photographs purportedly 15 depicting his participation in Falun Gong-related activities 16 in the United States, nor the country conditions evidence in 17 the record, established that Liu was practicing Falun Gong. 18 See Abudu, 485 U.S. at 104-05. Furthermore, contrary to 19 Liu’s position, the BIA properly declined to accord 20 probative weight to the vague assertions that he had a 21 “Falun Gong identity,” given the agency’s underlying adverse 22 credibility determination. 3 1 See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2 2007) (relying on the doctrine falsus in uno, falsus in 3 omnibus to conclude that the agency may decline to credit 4 documentary evidence submitted with a motion to reopen by an 5 alien who was found not credible in the underlying 6 proceeding); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 7 315, 342 (2d Cir. 2006) (holding that the weight afforded to 8 the applicant’s evidence in immigration proceedings lies 9 largely within the agency’s discretion). 10 Additionally, the BIA reasonably determined that the 11 record did not demonstrate Liu’s prima facie eligibility for 12 relief. See Abudu, 485 U.S. at 104 (holding that the BIA 13 may deny a motion to reopen on the ground that the movant 14 has not established prima facie eligibility for the 15 underlying relief sought). Indeed, as the BIA found, Liu 16 failed to demonstrate an objectively reasonable fear of 17 persecution, as he did not present any evidence that Chinese 18 officials were aware or would become aware of his “Falun 19 Gong identity,” or that the Chinese government targets 20 similarly-situated individuals upon their return to China. 21 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 22 2008) (holding that an applicant may establish eligibility 23 for asylum based exclusively on activities undertaken after 4 1 his arrival in the United States so long as he demonstrates 2 that “authorities in his country are aware of his activities 3 or likely to become aware of his activities”); Jian Xing 4 Huang v. INS, 421 F.3d 125, 128 (2d Cir. 2005) (stating that 5 to demonstrate objective reasonableness, the applicant must 6 show that a “reasonable person in the petitioner’s 7 circumstances would fear persecution if returned to his 8 native country”). 9 Accordingly, because Liu failed to present material 10 evidence that he would be affected by any change in 11 conditions in China, the BIA did not abuses its discretion 12 in denying is motion to reopen. See 8 U.S.C. 13 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see also 14 Abudu, 485 U.S. at 104. 15 For the foregoing reasons, the petition for review is 16 DENIED. Any pending request for oral argument in this 17 petition is DENIED in accordance with Federal Rule of 18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 19 34.1(b). 20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23 5