Filed: Jul. 08, 2010
Latest Update: Feb. 21, 2020
Summary: 09-4359-ag Ni v. Holder BIA A072 436 135 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: 09-4359-ag Ni v. Holder BIA A072 436 135 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..
More
09-4359-ag
Ni v. Holder
BIA
A072 436 135
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 8 th day of July, two thousand ten.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
JOSÉ A. CABRANES,
Circuit Judges.
___________________________________
ZHOU BAO NI, a.k.a. TI TEE BAO,
Petitioner,
v. 09-4359-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL,
Respondent.
___________________________________
FOR PETITIONER: Jed S. Wasserman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Thomas B. Fatouros, Senior Litigation
Counsel, Ann M. Welhaf, Trial
Attorney, 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.
Zhou Bao Ni, also known as Ti Tee Bao, a native and
citizen of the People’s Republic of China, seeks review of a
September 22, 2009, order of the BIA denying his motion to
reopen his removal proceedings. In re Ni, No. A072 436 135
(B.I.A. Sept. 22, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien who has been ordered removed may
file one motion to reopen, but must do so within 90 days of
the final administrative decision. 8 U.S.C. § 1229a(c)(7).
Here, the BIA properly denied Ni’s motion to reopen as
untimely and number-barred, as it was his third motion to
reopen and was filed seven years after his April 2002 final
order of removal. See id.; 8 C.F.R. § 1003.2(c)(2).
Although the time limits may be excused when the movant
demonstrates changed country conditions, 8 U.S.C.
§ 1229a(c)(7)(C)(ii), the BIA reasonably found that the
evidence Ni submitted failed to demonstrate a change in
-2-
country conditions in China. Indeed, Ni fails to point to any
evidence in the record establishing how the Chinese
government’s current treatment of members of the Chinese
Democracy Party differed from their treatment at the time of
his merits hearing. Ni also does not challenge the BIA’s
finding that his motion was based on “a change in personal
circumstances in the United States.” Therefore, substantial
evidence supports the BIA’s determination that Ni failed to
establish changed country conditions. See 8 C.F.R.
§ 1003.2(c)(2), (c)(3)(ii); see also Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
Furthermore, a reasonable fact-finder would not be
compelled to conclude that the BIA ignored any material
evidence or that it failed to provide a sufficient explanation
for its findings. Although the agency has an obligation to
consider all evidence relevant to an applicant’s claim, it
need not “expressly parse or refute on the record each
individual argument or piece of evidence offered by the
petitioner.” Jian Hui Shao, 546 F.3d at 169. Here, given the
BIA’s references to the documentation submitted with the
motion to reopen, it is apparent that the BIA considered Ni’s
evidence, and made reasonable findings based on the record.
See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337
-3-
n.17 (2d Cir. 2006). Additionally, the BIA reasonably
declined to credit Ni’s unauthenticated evidence – a summons
purportedly from the Public Security Bureau – based on the
IJ’s underlying adverse credibility determination. See Qin
Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).
Accordingly, the BIA did not abuse its discretion by denying
Ni’s motion. See Kaur v. BIA,
413 F.3d 232, 233 (2d Cir. 2005)
(per curiam).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
-4-
