Filed: Dec. 01, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3354-ag Chan v. Holder BIA A098 594 204 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 “SU
Summary: 10-3354-ag Chan v. Holder BIA A098 594 204 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 “SUM..
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10-3354-ag
Chan v. Holder
BIA
A098 594 204
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 1st day of December, two thousand eleven.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KUOK WA CHAN, also known as LIN YONG
14 CHEN, also known as LING YONG CHEN,
15 Petitioner,
16
17 v. 10-3354-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Michael Brown, New York, N.Y.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Hillel R. Smith, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Kuok Wa Chan, a native and citizen of China, seeks
6 review of an August 4, 2010, decision of the BIA denying his
7 motion to reopen. In re Kuok Wa Chan, No. A098 594 204
8 (B.I.A. Aug. 4, 2010). We assume the parties’ familiarity
9 with the underlying facts and procedural history of this
10 case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). Where the BIA evaluates country conditions
14 evidence, we review that determination for substantial
15 evidence. Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d
16 Cir. 2008).
17 It is undisputed that Chan’s motion to reopen was
18 untimely, as it was filed more than one year after the
19 agency’s order of removal became final. See 8 U.S.C.
20 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, this
21 time limitation does not apply to a motion to reopen asylum
22 proceedings that is “based on changed circumstances arising
2
1 in the country of nationality or in the country to which
2 deportation has been ordered, if such evidence is material
3 and was not available and could not have been discovered or
4 presented at the previous hearing.” 8 C.F.R.
5 § 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(i). Chan
6 argues that the BIA abused its discretion in declining to
7 credit the unauthenticated village notice he submitted and
8 in finding that he failed to establish changed country
9 conditions.
10 As a preliminary matter, the BIA did not err in
11 concluding that Chan’s Falun Gong activities in the United
12 States constituted a change in personal circumstances, not a
13 change in conditions “arising in the country of origin,”
14 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii),
15 and therefore were not sufficient to overcome the time
16 limitation for filing a late motion to reopen, see, e.g.,
17 Wei Guang Wang v. BIA, 437 F.3d 270, 272-74 (2d Cir. 2006)
18 (making clear that the time and numerical limitations on
19 motions to reopen may not be suspended because of a “self-
20 induced change in personal circumstances” that is “entirely
21 of [the applicant’s] own making after being ordered to leave
22 the United States”); Li Yong Zheng v. U.S. Dep’t of Justice,
3
1 416 F.3d 129, 130-31 (2d Cir. 2005) (holding that a change
2 in personal circumstances does not qualify as “changed
3 circumstances” so as to invoke the exception provided by
4 8 C.F.R. § 1003.2(c)(3)(ii)).
5 Chan’s arguments that the BIA abused its discretion in
6 declining to credit the unauthenticated village notice he
7 submitted and in concluding that he failed to establish
8 changed country conditions are unavailing. Contrary to
9 Chan’s assertion, the BIA reasonably declined to credit the
10 notice in light of the absence of authentication and the
11 prior adverse credibility finding. See Qin Wen Zheng v.
12 Gonzales,
500 F.3d 143, 149 (2d Cir. 2007) (concluding that
13 the BIA did not abuse its discretion in discrediting a
14 purported village notice where the document was not
15 authenticated and the alien had been found not credible).
16 Nor was the BIA required to credit Chan’s or his mother’s
17 affidavit.
Id. at 148 (concluding that the BIA did not
18 abuse its discretion in declining to credit documents
19 submitted with a motion to reopen where alien had been found
20 not credible in the underlying asylum hearing). Chan
21 contends that when considered together, his evidence is
22 sufficient to satisfy the “heavy burden” placed on an
4
1 untimely motion to reopen. However, given that the United
2 States Department of State’s 2007 Profile on China indicated
3 a continuation, rather than a change, in conditions for
4 Falun Gong practitioners since Chan’s 2006 merits hearing,
5 and that Chan’s other newly submitted evidence was
6 insufficient to meet his burden, the BIA did not abuse its
7 discretion in denying Chan’s motion as untimely because Chan
8 failed to demonstrate materially changed country conditions
9 relevant to his claim. See Tu Lin v. Gonzales, 446 F.3d
10 395, 400 (2d Cir. 2006) (providing that State Department
11 reports are probative).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
