Filed: Feb. 23, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1948-ag Pan v. Holder BIA A073 607 614 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 “SUM
Summary: 10-1948-ag Pan v. Holder BIA A073 607 614 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..
More
10-1948-ag
Pan v. Holder
BIA
A073 607 614
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 23rd day of February, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 Bi Yan Pan,
14 Petitioner,
15
16 v. 10-1948-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, BOARD OF IMMIGRATION
21 APPEALS,
22 Respondents.
23 _______________________________________
24
25 FOR PETITIONER: Peter S. Gordon, Forest Hills, New
26 York.
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General; Paul Fiorino, Senior
30 Litigation Counsel; Seth A.
31 Director, Trial Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, 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 Bi Yan Pan, a native and citizen of the People’s
6 Republic of China, seeks review of an April 19, 2010, order
7 of the BIA denying her motion to reopen her removal
8 proceedings. In re Liu, No. A073 607 614 (B.I.A. Apr. 19,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the 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). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA did not abuse its discretion by denying Pan’s
17 motion to reopen as untimely, as she filed it more than six
18 years after her final order of removal. See id.; 8 C.F.R.
19 § 1003.2(c)(2).
20 Although the time limits on motions to reopen may be
21 excused when the movant demonstrates changed country
22 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
2
1 reasonably concluded that only Pan’s personal circumstances
2 had changed, as her claim was based on the fact that she
3 began practicing Falun Gong in 2009. See Wei Guang Wang v.
4 BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting that “apparent
5 gaming of the system in an effort to avoid [removal] is not
6 tolerated by the existing regulatory scheme”); see also Yuen
7 Jin v. Mukasey,
538 F.3d 143, 151-56 (2d Cir. 2008) (holding
8 that the existing legal system does not permit aliens who
9 have been ordered removed “to disregard [those] orders and
10 remain in the United States long enough to change their
11 personal circumstances (e.g., by having children or
12 practicing a persecuted religion) and initiate new
13 proceedings via a new asylum application”).
14 Moreover, substantial evidence supports the BIA’s
15 conclusion that Pan failed to show a material change in
16 country conditions. Although the evidence indicated that
17 repression of Falun Gong practitioners increased during the
18 2008 Olympics, the evidence also indicated that the
19 repression has been constant and ongoing since the time of
20 Pan’s hearing in 2001. Accordingly, the BIA reasonably
21 determined that Pan failed to establish that conditions in
22 China had materially changed so as to warrant reopening.
3
1 See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)
2 (“Where there are two permissible views of the evidence, the
3 fact finder’s choice between them cannot be clearly
4 erroneous.”) (citations omitted); Xiao Ji Chen v. U.S. Dep’t
5 of Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that
6 the weight afforded to the applicant’s evidence in
7 immigration proceedings lies largely within the discretion
8 of the IJ); see also Jian Hui Shao v. Mukasey,
546 F.3d 138,
9 169 (2d Cir. 2008) (reviewing the BIA’s factual findings
10 regarding changed country conditions under the substantial
11 evidence standard).
12 Finally, given the BIA’s explicit references to the
13 documentation submitted with the motion to reopen, a
14 reasonable fact-finder would not be compelled to conclude
15 that the BIA ignored any material evidence that Pan
16 submitted. See Wei Guang
Wang, 437 F.3d at 275 (holding
17 that the BIA is not required to “expressly parse or refute
18 on the record each individual argument or piece of evidence
19 offered by the petitioner” as long as it “has given reasoned
20 consideration to the petition, and made adequate findings”)
21 (citations omitted); see also Xiao Ji
Chen, 471 F.3d at 337
22 n.17 (presuming that the agency “has taken into account all
4
1 of the evidence before [it], unless the record compellingly
2 suggests otherwise”).
3 Accordingly, the BIA did not abuse its discretion by
4 denying Pan’s motion. See Ali, 448 F.3d at 517.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
5
