Filed: Feb. 21, 2012
Latest Update: Feb. 22, 2020
Summary: 11-1718-ag Pui v. Holder BIA A073 565 085 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
Summary: 11-1718-ag Pui v. Holder BIA A073 565 085 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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11-1718-ag
Pui v. Holder
BIA
A073 565 085
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 21st day of February, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 YAU KUEN PUI,
14 Petitioner,
15
16 v. 11-1718-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
24 Fasano, LLP, New York, NY.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Douglas E. Ginsberg,
28 Assistant Director; Theo Nickerson,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Yau Kuen Pui, a native and citizen of China, seeks
10 review of a March 29, 2011 order of the BIA denying her
11 second motion to reopen and her motion to reconsider its
12 denial of her first motion to reopen. In re Yau Kuen Pui,
13 No. A073 565 085 (BIA Mar. 29, 2011). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of the case.
16 “We review the BIA’s denial of a motion to reopen or
17 reconsider for an abuse of discretion.” Ri Kai Lin v.
18 Bureau of Citizenship & Immigration Servs., 514 F.3d 251,
19 253–54 (2d Cir. 2008) (per curiam). When the agency
20 considers relevant evidence of country conditions in
21 evaluating a motion to reopen, we review factual findings
22 under the substantial evidence standard. See Jian Hui Shao
23 v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
24
2
1 An alien may move to reopen her case, but she must
2 generally do so within 90 days of the entry of the final
3 order of deportation in the underlying proceeding. 8 C.F.R.
4 § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i). A
5 motion that does not comply with this time limitation can be
6 brought if the alien establishes both “changed circumstances
7 arising in the country of nationality or in the country to
8 which deportation has been ordered,” 8 C.F.R.
9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii),
10 and prima facie eligibility for relief, see Poradisova v.
11 Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). Pui’s 2010 motion
12 to reopen was untimely because the BIA’s final order in the
13 underlying proceeding was entered in 2002. She was
14 therefore required to establish that conditions in China had
15 changed since her last merits hearing.
16 Pui concedes that the BIA correctly concluded that she
17 had shown a change in personal circumstances, which alone is
18 insufficient to excuse her untimely motion. See Li Yong
19 Zheng v. U.S. Dep’t of Justice,
416 F.3d 129, 130–31 (2d
20 Cir. 2005) (per curiam). Moreover, the BIA acted well
21 within its discretion in finding that Pui failed to
22 establish a material change in country conditions in China
3
1 concerning the oppression of political dissidents and
2 unregistered Christian churches. Pui cites to evidence
3 indicating that the Chinese government intensified its
4 oppression of political dissidents and unregistered
5 religious groups in certain regions of the country in the
6 period leading up to and during the 2008 Summer Olympics.
7 However, that intensification was not material to her motion
8 to reopen, which was filed well after the Olympics had
9 concluded. Cf. Jian Hui Shao, 546 F.3d at 169.
10 Although Pui cites to news articles and congressional
11 testimony indicating a general increased “crackdown” on
12 political and religious groups in China, the BIA did not
13 abuse its discretion in finding that she failed to explain
14 how the Chinese government’s treatment of such groups
15 materially changed since the time of her last hearing in
16 1998. See In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007).
17 Moreover, while Pui relied on a 2010 news article
18 quoting a U.S. State Department official’s opinion that
19 “pressure on civil society groups challenging Beijing
20 government policies is on the rise” and the situation was “a
21 real crackdown,” the BIA was not required to expressly
22 address this piece of evidence where she failed to compare
4
1 the current conditions in China to the conditions in 1998,
2 or give the official’s generalized opinion much weight where
3 she failed to substantiate her claim with any other
4 evidence. See Jian Hui Shao, 546 F.3d at 169; Xiao Ji Chen
5 v. U.S. Dep’t of Justice,
471 F.3d 315, 342 (2d Cir. 2006).
6 Furthermore, substantial evidence in the record supports the
7 BIA’s conclusion that no material change has occurred in
8 China’s policy toward unregistered churches. Consequently,
9 we will not disturb the agency’s finding.
10 Finally, Pui challenges the BIA’s denial of her motion
11 to reconsider her first motion to reopen insofar as the
12 agency ruled that her reliance on Shi Jie Ge v. Holder, 588
13 F.3d 90, 96 (2d Cir. 2009), and other cases was misplaced.
14 In her appellate brief, she asserts that, like the asylum
15 applicant in Shi Jie Ge, she can “demonstrate a well-founded
16 fear of future persecution by demonstrating that [her]
17 involvement in a banned organization [, i.e., the China
18 Democracy Party (“CDP”),] may become known after [her]
19 return.” Shi Jie
Ge, 588 F.3d at 96 (emphasis in original).
20 However, because Pui failed to demonstrate changed country
21 conditions, a prerequisite to consideration of the merits of
22 her claim, we need not address whether the agency’s
23 conclusion that no evidence had been submitted demonstrating
5
1 that the Chinese authorities were actually aware of her CDP
2 membership was error in light of Shi Jie Ge.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED. Any pending request for oral argument in this
7 petition is DENIED in accordance with Federal Rule of
8 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
9 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
6
