Filed: Sep. 14, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3775-ag Weng v. Holder BIA A077 347 541 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: 10-3775-ag Weng v. Holder BIA A077 347 541 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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10-3775-ag
Weng v. Holder
BIA
A077 347 541
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 14th day of September, two thousand eleven.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _______________________________________
12
13 YI WENG, AKA YI DI WENG,
14 Petitioner,
15
16 v. 10-3775-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Shelley R. Goad, Assistant
28 Director; Russell J.E. Verby, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, 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 Yi Weng, a native and citizen of the People’s Republic
6 of China, seeks review of an August 24, 2010, decision of
7 the BIA denying his motion to reopen. In re Yi Weng, aka Yi
8 Di Weng, No. A077 347 541 (B.I.A. Aug. 24, 2010). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Weng’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien may file only one motion to reopen
14 and must do so within 90 days of the BIA’s final
15 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
16 § 1003.2(c)(2). Although Weng’s motion was indisputably
17 untimely because it was filed more than six years after the
18 agency’s final order of removal, see 8 U.S.C.
19 § 1229a(c)(7)(C)(i), there is no time limitation for filing
20 a motion to reopen if it is “based on changed country
21 conditions arising in the country of nationality or the
22 country to which removal has been ordered, if such evidence
2
1 is material and was not available and would not have been
2 discovered or presented at the previous proceeding.”
3 8 U.S.C. § 1229a(c)(7)(C)(ii).
4 The BIA did not abuse its discretion in finding that
5 Weng’s protests at the Chinese consulate in the United
6 States did not constitute materially changed conditions in
7 China excusing the untimely filing of his motion to reopen.
8 See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,
9 130-31 (2d Cir. 2005) (explaining that a change in “personal
10 circumstances in the United States” did not constitute a
11 change in country conditions excusing the filing deadline
12 for motions to reopen). Moreover, the BIA did not abuse its
13 discretion in finding that Weng failed to demonstrate
14 materially changed circumstances in China based on his
15 village committee’s discovery of his protest activities in
16 the United States. The BIA reasonably relied on the IJ’s
17 underlying adverse credibility determination to decline to
18 credit the only evidence of such circumstances – an
19 untranslated village committee notice and his father’s
20 letter. See Qin Wen Zheng v. Gonzales,
500 F.3d 143, 146-49
21 (2d Cir. 2007) (relying on the doctrine falsus in uno,
22 falsus in omnibus to conclude that the agency may decline to
3
1 credit documentary evidence submitted with a motion to
2 reopen by an alien who was found not credible in the
3 underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d
4 160, 170 (2d Cir. 2007)). Weng’s reliance on Paul v.
5 Gonzales,
444 F.3d 148, 154 (2d Cir. 2006), to challenge the
6 BIA’s decision is misplaced. In Paul, we held that the BIA
7 erred in denying a motion to reopen based entirely on the
8 movant’s failure to rebut the IJ’s underlying adverse
9 credibility finding because the IJ had explicitly credited
10 the movant’s claim that he was a Christian. See Paul,
444
11 F.3d at 154. Accordingly, the BIA was required to consider
12 objective country conditions regarding the mistreatment of
13 Christians in the movant’s country – evidence that did not
14 depend on the movant’s credibility for its probative force.
15 See
id. at 152-55. Here, unlike in Paul, the IJ did not
16 find any aspect of Weng’s testimony credible, and the BIA
17 reasonably declined to credit documents that depended upon
18 Weng’s veracity. See
id. Accordingly, because the BIA did
19 not abuse its discretion in declining to credit Weng’s
20 individualized evidence purporting to detail changed
21 circumstances in China, see Qin Wen
Zheng, 500 F.3d at 146-
22 49, its denial of his motion to reopen as untimely was not
23 in error. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
24 § 1003.2(c).
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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