Filed: Apr. 05, 2012
Latest Update: Feb. 22, 2020
Summary: 10-3782-ag Ke v. Holder BIA A076 505 530 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
Summary: 10-3782-ag Ke v. Holder BIA A076 505 530 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 “SUMMA..
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10-3782-ag
Ke v. Holder
BIA
A076 505 530
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5th day of April, two thousand twelve.
PRESENT:
ROBERT D. SACK,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________
BE JING KE,
Petitioner,
v. 10-3782-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Peter S. Gordon, Forest Hills, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Jeffery R.
Leist, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Be Jing Ke, a native and citizen of the
People’s Republic of China, seeks review of the August 27,
2010, order of the BIA denying her motion to reopen. In re
Be Jing Ke, No. A076 505 530 (B.I.A. Aug. 27, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
The BIA’s denial of Ke’s motion to reopen as untimely
was not an abuse of discretion. See Kaur v. BIA,
413 F.3d
232, 233 (2d Cir. 2005) (per curiam). An alien may file one
motion to reopen, generally no later than 90 days after the
date on which the final administrative decision was rendered
in the proceedings sought to be reopened. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is
no dispute that Ke’s 2010 motion was untimely because the
agency issued the final administrative order in 2002.
See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
The time limitation does not apply to a motion to reopen if
it is “based on changed circumstances arising in the country
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of nationality or in the country to which deportation has
been ordered, if such evidence is material and was not
available and could not have been discovered or presented at
the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see
also 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA concluded,
Ke’s practice of Falun Gong in the United States is not a
changed circumstance arising in China. Wei Guang Wang v.
BIA,
437 F.3d 270, 273 (2d Cir. 2006); Yuen Jin v. Mukasey,
538 F.3d 143, 155 (2d Cir. 2008).
Ke argues, however, that she demonstrated an increase
in China’s persecution of Falun Gong practitioners since the
2008 Olympics. While the evidence indicates that repression
of Falun Gong practitioners increased during the 2008
Olympics, Ke failed to proffer evidence indicating what
conditions existed for Falun Gong practitioners in China at
the time of her 2000 merits hearing. The BIA’s
determination that the evidence failed to demonstrate
changed circumstances in China since the time of Ke’s
previous hearing is, therefore, supported by substantial
evidence. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii); Jian Hui Shao v. Mukasey,
546 F.3d 138,
169 (2d Cir. 2008) (reviewing the BIA’s factual findings
3
regarding changed country conditions under the substantial
evidence standard). Contrary to Ke’s argument that the BIA
ignored evidence, the BIA is not required to address each
individual piece of evidence and its decision indicates that
it considered the evidence. See Xiao Ji Chen v. U.S. Dep’t
of Justice,
471 F.3d 315, 338 n.17 (2d Cir. 2006).
Because the evidence Ke submitted was insufficient to
establish changed conditions in China, and her recent
dedication to Falun Gong constitutes only a change in
personal circumstances, the BIA did not abuse its discretion
in concluding that she failed to meet an exception to the
filing deadline, and, consequently, in denying her untimely
motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii);
8 C.F.R. § 1003.2(c)(2), (3).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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