Filed: Sep. 11, 2014
Latest Update: Mar. 02, 2020
Summary: 13-316 Yan v. Holder BIA A078 745 500 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
Summary: 13-316 Yan v. Holder BIA A078 745 500 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 ..
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13-316
Yan v. Holder
BIA
A078 745 500
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of September, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROSEMARY S. POOLER,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 LI XIAN YAN, AKA LI XIANG YANG,
14 Petitioner,
15
16 v. 13-316
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Fuhao Yang, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Erica B. Miles, Senior
27 Litigation Counsel; C. Frederick
28 Sheffield, Trial Attorney; Mehak
29 Naveed, Legal Intern, 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 Li Xian Yan, a native and citizen of the
6 People’s Republic of China, seeks review of the December 31,
7 2012 decision of the BIA denying his motion to reopen. In
8 re Li Xian Yan, No. A078 745 500 (B.I.A. Dec. 31, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 The BIA’s denial of Yan’s motion to reopen as untimely
12 and number barred was not an abuse of discretion. See Kaur
13 v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An
14 alien may file one motion to reopen, generally no later than
15 90 days after the date on which the final administrative
16 decision was rendered in the proceedings sought to be
17 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Yan’s 2012 motion
19 was untimely, as his final administrative order was issued
20 in 2003. See 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
21 § 1229a(c)(7)(C)(ii). However, the time limitation does not
22 apply to a motion to reopen if it is “based on changed
2
1 circumstances arising in the country of nationality . . . if
2 such evidence is material and was not available and could
3 not have been discovered or presented at the previous
4 hearing.” Id.
5 The BIA’s determination that Yan’s individualized
6 documents were insufficient to show changed country
7 conditions was not an abuse of discretion. Yan’s motion
8 stated that he had mailed religious materials to a friend in
9 China, and that the friend had been confronted by the
10 authorities and told to inform Yan that he must stop
11 proselytizing or be punished. In support of this statement,
12 Yan offered a statement from his friend in China. The BIA
13 permissibly discounted this statement because the friend was
14 unavailable for cross-examination, and his letter was
15 unaccompanied by independent corroborating evidence, such as
16 a shipping label or letter from the authorities. See Xiao
17 Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir.
18 2006) (weight afforded to the evidence “lies largely within
19 the discretion” of the agency); Qui Wen Zheng v. Gonzales,
20
500 F.3d 143, 146-47 (2d Cir. 2007) (upholding the agency’s
21 refusal to credit an applicant’s individualized evidence in
22 a motion to reopen when there had been an adverse
23 credibility determination in the original hearing).
3
1 The BIA also reasonably found that Yan’s background
2 evidence did not support reopening. Yan stated that the
3 Chinese government was attempting to “completely eliminate”
4 Christianity, but the agency accurately noted that State
5 Department reports clearly indicate that some forms of
6 Christianity are permitted. The BIA also determined that
7 Yan had not shown that he would likely suffer harm rising to
8 the level of persecution. See Ivanishvili v. U.S. Dep’t of
9 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (stating that the
10 harm must be sufficiently severe, rising above “mere
11 harassment”). Moreover, the agency properly found that none
12 of Yan’s documentary evidence suggested he was more likely
13 than not to be tortured. See Jian Xing Huang v. INS, 421
14 F.3d 125, 129 (2d Cir. 2005) (holding that a fear is not
15 objectively reasonable if it lacks “solid support” in the
16 record and is merely “speculative at best”).
17 Accordingly, the BIA did not abuse its discretion in
18 denying Yan’s motion to reopen as untimely and number
19 barred. See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i), (ii); 8
20 C.F.R. § 1003.2(c)(2).
21
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the motion for
3 stay or removal is DENIED as moot.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
7
5
