Filed: Mar. 22, 2012
Latest Update: Feb. 22, 2020
Summary: 10-2766-ag Li v. Holder BIA Videla, IJ A070 889 568 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 NOT
Summary: 10-2766-ag Li v. Holder BIA Videla, IJ A070 889 568 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 NOTA..
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10-2766-ag
Li v. Holder
BIA
Videla, IJ
A070 889 568
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 22nd day of March, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 ROSEMARY S. POOLER,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _______________________________________
13
14 ZUO PENG LI,
15 Petitioner,
16
17 v. 10-2766-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 David V. Bernal, Assistant Director;
28 Yedidya Cohen, Trial Attorney, Office of
29 Immigration Litigation, Civil Division,
30 United States Department of Justice,
31 Washington, D.C.
32
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 Zuo Peng Li, a native and citizen of China,
6 seeks review of a June 16, 2010, order of the BIA affirming
7 the July 2, 2008, decision of Immigration Judge (“IJ”)
8 Gabriel C. Videla denying Li’s motion to reopen. In re Zuo
9 Peng Li, No. A070 889 568 (B.I.A. June 16, 2010), aff’g No.
10 A070 889 568 (Immig. Ct. N.Y. City July 2, 2008). We assume
11 the parties’ familiarity with the underlying facts and
12 procedural history in this case.
13 Under the circumstances of this case, we have
14 considered both the IJ’s and the BIA’s opinions. See Zaman
15 v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). This Court
16 reviews the agency’s denial of a motion to reopen and the
17 BIA’s denial of a motion to remand for abuse of discretion.
18 Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006); Li Yong
19 Cao v. U.S. Dep’t of Justice,
421 F.3d 149, 157 (2d Cir.
20 2005).
21 Here, the BIA did not abuse its discretion in declining
22 to consider Li’s new evidence, because it was adjudicating
23 an appeal from the IJ’s order. See 8 C.F.R.
2
1 § 1003.1(d)(3)(iv) (“Except for taking administrative notice
2 of commonly known facts such as current events or the
3 contents of official documents, the Board will not engage in
4 factfinding in the course of deciding appeals.”).
5 Accordingly, the BIA properly determined whether remand was
6 appropriate. See id. (“A party asserting that the Board
7 cannot properly resolve an appeal without further
8 factfinding must file a motion for remand.”).
9 The BIA also did not abuse its discretion in declining
10 to remand Li’s case based on the new evidence. The BIA
11 determined that Li’s brother’s letter was unreliable because
12 it was an unnotarized, unsworn copy that was not
13 corroborated by any other documents from a reliable source.
14 We defer to that ruling. See Xiao Ji Chen v. U.S. Dep’t of
15 Justice,
471 F.3d 315, 342 (2d Cir. 2006) (holding that the
16 weight afforded to evidence in immigration proceedings lies
17 largely within the discretion of the agency). Additionally,
18 the other evidence Li submitted was not “previously
19 unavailable” and could have been submitted or summarized
20 with his original motion to reopen. See Li Yong Cao,
421
21 F.3d at 156 (explaining that the BIA may decline to remand
22 where the movant has failed to “comply with the requirement
23 of 8 C.F.R. § 3.2(c)(1) [now found at § 1003.2(c)(1)] that
3
1 his motion articulate material, previously unavailable
2 evidence”).
3 Nor did the agency abuse its discretion by denying Li’s
4 motion to reopen as untimely, as it was filed more than ten
5 years after his final order of removal. See 8 U.S.C. §
6 1229a(c)(7). The time limits on motions to reopen may be
7 excused when the movant demonstrates changed country
8 conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). But, as the
9 BIA concluded, Li’s claim, based on the fact that he joined
10 the China Democracy Party in 2007, reflected no more than a
11 change in personal circumstances. See Wei Guang Wang v.
12 BIA, 437 F.3d 270, 274 (2d Cir. 2006) (“[A]pparent gaming of
13 the system in an effort to avoid [removal] is not tolerated
14 by the existing regulatory scheme....”); see also Yuen Jin
15 v. Mukasey,
538 F.3d 143, 151-56 (2d Cir. 2008).
16 Moreover, substantial evidence supports the agency’s
17 determination that Li failed to establish that conditions in
18 China had materially changed. The evidence he submitted to
19 the agency documenting the persecution of pro-democracy
20 activists in China did not indicate that there had been any
21 change in that persecution between Li’s 1998 removal hearing
22 and 2008 when he filed his motion to reopen. See U.S.C.
23 § 1229a(c)(7)(C)(ii).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot.
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
5
