11-1579-ag
Hu v. Holder
BIA
A073 553 366
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 5th day of July, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 PIERRE N. LEVAL,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 DONGPING HU,
15 Petitioner,
16
17 v. 11-1579-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Peter Lobel, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Lyle D. Jentzer, Senior
28 Litigation Counsel; Glen T. Jaeger,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 Dongping Hu, a native and citizen of the
6 People’s Republic of China, seeks review of a March 23,
7 2011, order of the BIA denying her motion to reopen. In re
8 Dongping Hu, No. A073 553 366 (B.I.A. Mar. 23, 2011). 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. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). The agency’s regulations permit an alien
14 seeking to reopen proceedings to file one motion to reopen
15 no later than 90 days after the date on which the final
16 administrative decision was rendered. See 8 U.S.C.
17 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is
18 undisputed that Hu’s August 2010 motion to reopen was time-
19 and number-barred because the IJ issued a final order of
20 removal in 1998, and it was Hu’s second motion to reopen.
21 However, there are no limitations for filing a motion to
22 reopen if it is “based on changed circumstances arising in
2
1 the country of nationality or in the country to which
2 deportation has been ordered, if such evidence is material
3 and was not available and could not have been discovered or
4 presented at the previous hearing.” 8 C.F.R.
5 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
6 Although Hu argues that the BIA used “boilerplate,” the
7 BIA based its decision on Hu’s failure to demonstrate both a
8 material change in country conditions and her prima facie
9 eligibility for relief. The BIA did not abuse its
10 discretion in concluding that Hu’s conversion to
11 Christianity was a change in personal circumstances, not a
12 change in conditions in China. See Yuen Jin v. Mukasey, 538
13 F.3d 143, 155 (2d Cir. 2008) (the existing legal system does
14 not permit aliens who have been ordered removed “to change
15 their personal circumstances (e.g., by having children or
16 practicing a persecuted religion) and initiate new
17 proceedings via a new asylum application”); see also Wei
18 Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006)
19 (making clear that the time and numerical limitations on
20 motions to reopen may not be suspended because of a “self-
21 induced change in personal circumstances” that is “entirely
22 of [the applicant’s] own making after being ordered to leave
23 the United States.”).
3
1 Hu also argues that country conditions in China have
2 worsened for Christians since her last hearing in 1999, and
3 that the BIA ignored background evidence that practitioners
4 were targeted for persecution and failed to credit
5 supporting affidavits that demonstrated a local crackdown
6 against Christians in her hometown. The BIA’s determination
7 that the Chinese government primarily targeted church
8 leaders (rather than ordinary practitioners like Hu) is
9 supported by substantial evidence. See Jian Hui Shao v.
10 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the
11 BIA’s determination regarding country conditions under the
12 substantial evidence standard). Although Hu’s background
13 materials may reflect some increase in crackdowns against
14 Christians, the crackdowns mainly target house church
15 leaders, churches in urban areas, Christian publications,
16 and foreign missionaries in China. Hu did not argue that
17 she is a member of any of these targeted groups. See Jian
18 Hui Shao, 546 F.3d at 171.
19 Hu argues that the BIA erroneously rejected her
20 friend’s affidavits. The BIA reasonably declined to credit
21 the affidavits because they lacked specificity as to the
22 dates and locations of the alleged arrests, they were
4
1 unsworn, and they were unauthenticated. See Xiao Ji Chen v.
2 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the
3 weight to be afforded to an applicant’s evidence in
4 immigration proceedings lies largely within the discretion
5 of the agency). Moreover, Hu allegedly obtained these
6 documents from her friends in China, so the authenticity of
7 the affidavits depended on her credibility, which was found
8 deficient in the underlying proceedings. See Qin Wen Zheng
9 v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2009) (relying on
10 the doctrine of falsus in uno, falsus in omnibus to conclude
11 that the agency may decline to credit documentary evidence
12 submitted with a motion to reopen by an alien who was found
13 not credible in the underlying proceeding).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, Hu’s pending
16 motion for a stay of removal in this petition is DENIED as
17 moot.
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
5