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Ke v. Holder, 10-3782-ag (2012)

Court: Court of Appeals for the Second Circuit Number: 10-3782-ag Visitors: 53
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
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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


                             2
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




                                4

Source:  CourtListener

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