10-3502-ag
    Lu v. Holder
                                                                                  BIA
                                                                          A073 767 339



                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
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         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 12th day of April, two thousand twelve.

    PRESENT:
             DENNIS JACOBS,
                  Chief Judge,
             ROSEMARY S. POOLER,
             DEBRA ANN LIVINGSTON,
                  Circuit Judges.
    _____________________________________

    QICAL LU,
                   Petitioner,

                   v.                                      10-3502-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Lee Ratner, of counsel for Michael
                                  Brown, Law Offices of Michael Brown,
                                  New York, N.Y.
FOR RESPONDENT:           Sarah Maloney, Trial Attorney for
                          Tony West, Assistant Attorney
                          General & James E. Grimes, Senior
                          Litigation Counsel, Office of
                          Immigration Litigation, Civil
                          Division, United States Department
                          of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Qical Lu, a native and citizen of China, seeks review

of an August 10, 2010, decision of the BIA denying his

motion to reopen.     In re Qical Lu, No. A073 767 339 (B.I.A.

Aug. 10, 2010).     We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.     Ali v. Gonzales, 

, 517 (2d

Cir. 2006).    Where the BIA evaluates country conditions

evidence, we review that determination for substantial

evidence.     Jian Hui Shao v. Mukasey, 

, 169 (2d

Cir. 2008).

    There is no dispute that Lu’s October 2009 motion to

reopen was untimely and number-barred, because it was his

second such motion and because the BIA entered a final


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administrative order of removal in May 1998.    See 8 U.S.C.

§ 1229a(c)(7)(C)(I); 8 C.F.R. § 1003.2(c)(2).   However, the

time and number limitations do not apply to a motion to

reopen asylum proceedings that is “based on changed

circumstances arising in the country 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); 8 U.S.C. § 1229a(c)(7)(C)(ii).

    The BIA did not abuse its discretion in concluding that

Lu’s Falun Gong activities in the United States constituted

a change in personal circumstances rather than a change in

conditions “arising in the country of nationality,” 8 U.S.C.

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

therefore were not sufficient to overcome the time and

number limitations, see, e.g., Wei Guang Wang v. BIA, 

, 272-74 (2d Cir. 2006) (making clear that the time

and numerical limitations on motions to reopen may not be

suspended because of a “self-induced change in personal

circumstances” that is “entirely of [the applicant’s] own

making after being ordered to leave the United States”); Li

Yong Zheng v. U.S. Dep’t of Justice, 

, 130-131


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(2d Cir. 2005) (holding that a change in personal

circumstances does not qualify as “changed circumstances” so

as to invoke the exception provided by 8 C.F.R.

§ 1003.2(c)(3)(ii)).

    In addition, Lu’s argument that the BIA abused its

discretion in declining to credit the unauthenticated

village notice he submitted is unavailing.   The BIA did not

require that the village notice be formally authenticated,

see Cao He Lin v. U.S. Dep’t of Justice, 

, 404-

05 (2d Cir. 2005), but rather observed that it had not been

authenticated and was unsigned, and that its reliability was

therefore doubtful, particularly since Lu previously had

been found not credible.   See Qin Wen Zheng v. Gonzales, 

, 149 (2d Cir. 2007) (concluding that the BIA did

not abuse its discretion in declining to credit a purported

village notice where the document was not authenticated and

the alien had been found not credible). Because Lu failed to

otherwise demonstrate that Chinese authorities were aware or

likely to become aware of his Falun Gong activities – or to

otherwise establish changed country conditions – the BIA did

not abuse its discretion in denying his untimely motion.




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    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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