Filed: Oct. 09, 2015
Latest Update: Mar. 02, 2020
Summary: 14-1135 Wei v. Lynch BIA A073 612 783 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: 14-1135 Wei v. Lynch BIA A073 612 783 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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14-1135
Wei v. Lynch
BIA
A073 612 783
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of October, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO FENG WEI,
14 Petitioner,
15
16 v. 14-1135
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Joyce R. Branda, Acting Attorney
27 General, Civil Division; Shelley R.
28 Goad, Assistant Director; Jennifer
29 P. Levings, Senior Litigation
30 Counsel, Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioner Xiao Feng Wei, a native and citizen of the
10 People’s Republic of China, seeks review of a March 20, 2014,
11 decision of the BIA denying his untimely and number-barred
12 motion to reopen proceedings. In re Xiao Feng Wei, No. A073
13 612 783 (B.I.A. Mar. 20, 2014). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 in this case.
16 We review the BIA’s denial of a motion to reopen for abuse
17 of discretion, remaining mindful of the Supreme Court’s
18 admonition that such motions are “disfavored.” Ali v.
19 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
20 Doherty,
502 U.S. 314, 322-23 (1992)); Kaur v. BIA,
413 F.3d
21 232, 233 (2d Cir. 2005) (per curiam); see also INS v. Abudu,
22
485 U.S. 94, 107 (1988). When the BIA considers relevant
23 evidence of country conditions in evaluating a motion to reopen,
2
1 we review the BIA’s factual findings under the substantial
2 evidence standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
3 (2d Cir. 2008).
4 An alien seeking to reopen proceedings may file one motion
5 to reopen no later than 90 days after the date on which the final
6 administrative decision was rendered. 8 U.S.C.
7 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
8 Indisputably, Wei’s January 2014 motion was untimely and
9 number-barred, as it was his second motion to reopen, filed
10 nearly two decades after the final order of removal. The time
11 and numerical limitations do not apply to a motion to reopen
12 if it is “based on changed circumstances arising in the country
13 of nationality or in the country to which deportation has been
14 ordered, if such evidence is material and was not available and
15 could not have been discovered or presented at the previous
16 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
17 § 1229a(c)(7)(C)(ii). However, substantial evidence supports
18 the BIA’s finding that Wei did not demonstrate changed
19 circumstances from the time of his 1996 removal order. See Jian
20 Hui
Shao, 546 F.3d at 169; Matter of S-Y-G-, 24 I&N Dec. 247,
21 253 (B.I.A. 2007).
3
1 Wei moved to reopen proceedings based on his activism with
2 the Chinese Democracy Party (“CDP”) in the United States,
3 arguing that there had been a change in the Chinese government’s
4 treatment of democracy activists since 1996. He did not,
5 however, submit any evidence regarding country conditions in
6 China in 1996. Moreover, as the BIA noted, the country
7 conditions evidence he did submit, including the 2012 U.S. State
8 Department Human Rights and Congressional-Executive Commission
9 on China Annual reports, discusses the Chinese government’s
10 ongoing, continuous repression of democracy activists, not a
11 material change in treatment. Wei therefore did not
12 demonstrate a change in country conditions. See Jian Hui Shao,
13 546 F.3d at 142, 149.
14 Wei submitted with his motion to reopen a letter from his
15 sister in China which states that “people from the National
16 Security Bureau came to visit [her] home regarding [his] issue,”
17 told her that Wei had published anti-government articles, and
18 warned her that she needed to report to them if she “learned
19 anything about” Wei. Wei argues that this letter demonstrates
20 changed country conditions in China. However, the BIA did not
21 abuse its discretion in according the statement limited weight
4
1 because it was unsworn and from an interested party. See Xiao
2 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
3 2006) (the weight afforded to an applicant’s evidence in
4 immigration proceedings lies largely within the discretion of
5 the agency). Accordingly, the BIA reasonably determined that
6 Wei failed to establish materially changed conditions in China
7 and did not abuse its discretion in denying his untimely and
8 number-barred motion. See 8 C.F.R. § 1003.2(c)(2),
9 (c)(3)(ii).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of removal
12 that the Court previously granted in this petition is VACATED,
13 and any pending motion for a stay of removal in this petition
14 is DISMISSED as moot. Any pending request for oral argument
15 in this petition is DENIED in accordance with Federal Rule of
16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
17 34.1(b).
18 FOR THE COURT:
19 Catherine O=Hagan Wolfe, Clerk
5
