Filed: Sep. 27, 2010
Latest Update: Feb. 21, 2020
Summary: 09-5299-ag Fu v. Holder BIA A077 341 189 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 “SUMM
Summary: 09-5299-ag Fu v. Holder BIA A077 341 189 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 “SUMMA..
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09-5299-ag
Fu v. Holder
BIA
A077 341 189
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 27 th day of September, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 TING TING FU,
14 Petitioner,
15
16 v. 09-5299-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Ernesto H. Molina, Jr.,
27 Assistant Director; Yanal Yousef,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Ting Ting Fu, a native and citizen of the People’s
6 Republic of China, seeks review of a December 15, 2009,
7 order of the BIA denying her motion to reopen. In re Ting
8 Ting Fu, No. A077 341 189 (B.I.A. Dec. 15, 2009). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Fu’s motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). An alien may file only one motion to reopen and
14 must do so within 90 days of the final administrative
15 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
16 Although Fu’s motion was indisputably untimely, there is no
17 time or numerical limitation if the alien establishes
18 materially “changed country conditions arising in the
19 country of nationality . . . .” 8 U.S.C.
20 § 1229a(c)(7) (C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
21 The BIA did not abuse its discretion in finding that
22 the birth of Fu’s two U.S. citizen children, as well as her
2
1 practice of Falun Gong in the United States, constituted a
2 change in her personal circumstances, rather than a change
3 in country conditions sufficient to excuse the untimely
4 filing of her motion to reopen. See Wei Guang Wang v. BIA,
5 437 F.3d 270, 274 (2d Cir. 2006); see also Jian Hui Shao v.
6 Mukasey,
546 F.3d 138, 169-72 (2d Cir. 2008) . Contrary to
7 Fu’s argument, the fact that Chinese authorities may have
8 become aware of the birth of her children and her Falun Gong
9 practice does not establish changed country conditions. See
10 Wei Guang
Wang, 437 F.3d at 273-74. In any event, the BIA
11 also reasonably declined to credit Fu’s evidence, including
12 her father’s affidavit and an unauthenticated notice from
13 her village committee, based on the lack of authentication
14 and the Immigration Judge’s underlying adverse credibility
15 determination. See Qin Wen Zheng v. Gonzales,
500 F.3d 143,
16 146-49 (2d Cir. 2007).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
3
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
4
