10-4188-ag
         Wu v. Holder
                                                                                         BIA
                                                                                 A095 864 126
                         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 7th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                   Circuit Judges.
11       _________________________________________
12
13       XIAO CONG WU,
14                Petitioner,
15
16                      v.                                         10-4188-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Michelle Gorden Latour,
27                                      Assistant Director; Brendan P.
28                                      Hogan, Office of Immigration
29                                      Litigation, United States Department
30                                      of Justice, 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 Xiao Cong Wu, a native and citizen of the

 6   People’s Republic of China, seeks review of the September

 7   23, 2010, decision of the BIA denying his motion to reopen.

 8   In re Xiao Cong Wu, No. A095 864 126 (B.I.A. Sept. 23,

 9   2010).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       The BIA’s denial of Wu’s motion to reopen as untimely

12   was not an abuse of discretion.   See Kaur v. BIA, 

  232, 233 (2d Cir. 2005) (per curiam).    A motion to reopen

14   generally must be filed no later than 90 days after the date

15   on which the final administrative decision was rendered in

16   the proceedings sought to be reopened.    8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

18   dispute that Wu’s 2010 motion was untimely, as the final

19   administrative decision was issued in March 2009.

20   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

21   The time limitation does not apply to a motion to reopen if

22   it is “based on changed circumstances arising in the country

23   of nationality or in the country to which deportation has

                                   2
 1   been ordered, if such evidence is material and was not

 2   available and could not have been discovered or presented at

 3   the previous hearing.”    8 C.F.R. § 1003.2(c)(3)(ii); see

 4   also 8 U.S.C. § 1229a(c)(7)(C)(ii).   However, the BIA did

 5   not abuse its discretion in finding that Wu failed to

 6   establish changed circumstances in China.

 7       The only evidence Wu proffered of changed circumstances

 8   arising in China was a letter from his wife - in which she

 9   stated that after Wu mailed her materials pertaining to

10   Chinese democracy, she was detained by the Chinese

11   government for ten days, and government officials told her

12   they would arrest Wu if he returned to China - and a

13   “Certificate of Detention” stating that Wu’s wife had been

14   detained in March 2009.   The BIA’s determination that this

15   evidence was of little probative value is entitled to

16   deference, particularly in light of the agency’s prior

17   adverse credibility determination, and the fact that the

18   “Certificate of Detention” was unauthenticated.    See Qin Wen

19   Zheng v. Gonzales, 

, 149 (2d Cir. 2007) (holding

20   that the BIA did not abuse its discretion in discrediting a

21   purported village notice where the document was not

22   authenticated and the alien had been found not credible by

23   the IJ); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471


                                    3
 

, 342 (2d Cir. 2006).       Moreover, the letter from

 2   Wu’s wife was unsworn and from an interested witness.       See

 3   Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA

 4   2010) (giving diminished weight to letters from friends and

 5   relatives where they were written by interested witnesses

 6   not subject to cross-examination).       Because the evidence Wu

 7   submitted was insufficient to establish a change in

 8   circumstances or country conditions, the BIA did not abuse

 9   its discretion in concluding that he failed to meet an

10   exception to the filing deadline, and, accordingly, in

11   denying his motion to reopen.       See 8 U.S.C.

12   § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).

13       For the foregoing reasons, the petition for review is

14   DENIED.   As we have completed our review, any stay of

15   removal that the Court previously granted in this petition

16   is VACATED, and any pending motion for a stay of removal in

17   this petition is DISMISSED as moot. Any pending request for

18   oral argument in this petition is DENIED in accordance with

19   Federal Rule of Appellate Procedure 34(a)(2), and Second

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
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