Filed: Jun. 11, 2013
Latest Update: Mar. 28, 2017
Summary: 12-1393 Guo v. Holder BIA A095 450 488 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 “SUMMAR
Summary: 12-1393 Guo v. Holder BIA A095 450 488 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..
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12-1393
Guo v. Holder
BIA
A095 450 488
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 11th day of June, two thousand thirteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _________________________________________
12
13 HONGMIN GUO,
14 Petitioner,
15
16 v. 12-1393
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Zhong Yue Zhang, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; William C.
27 Peachey, Assistant Director; Andrew
28 B. Insenga, Trial Attorney; Elliott
29 Daniels, Law Clerk, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Hongmin Guo, a native and citizen of The
6 People’s Republic of China, seeks review of the March 26,
7 2012, decision of the BIA denying his motion to reopen. In
8 re Hongmin Guo, No. A095 450 488 (B.I.A. Mar. 26, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 The BIA’s denial of Guo’s motion to reopen as untimely
12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005) (per curiam). An alien may file one
14 motion to reopen, generally no later than 90 days after the
15 date on which the final administrative decision was rendered
16 in the proceedings sought to be reopened. 8 U.S.C.
17 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). There is
18 no dispute that Guo’s 2011 motion was untimely, as the final
19 administrative order was issued in 2007. See 8 U.S.C.
20 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
21 time limitation does not apply to a motion to reopen if it
22 is “based on changed circumstances arising in the country of
2
1 nationality or in the country to which deportation has been
2 ordered, if such evidence is material and was not available
3 and could not have been discovered or presented at the
4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
5 8 U.S.C. § 1229a(c)(7)(C)(ii), as the BIA concluded, Guo
6 failed to establish changed circumstances for pro-democracy
7 activists arising in China.
8 Guo argues that he demonstrated an increased risk of
9 persecution based on his publication of anti-communist
10 articles online and participation in the Chinese Democracy
11 Party (“CDP”) in the United States. As support, he
12 submitted a letter from his mother stating that Chinese
13 authorities harassed her and threatened his arrest if he
14 returned to China due to his CDP activities abroad. The
15 BIA’s determination that the evidence failed to demonstrate
16 changed conditions arising in China is supported by
17 substantial evidence. See Jian Hui Shao v. Mukasey, 546
18 F.3d 138, 169 (2d Cir. 2008). As the BIA reasonably found,
19 Guo’s recent pro-democracy activities constituted changed
20 personal circumstances, not changed conditions arising in
21 China as required to excuse the time limitation imposed on
22 motions to reopen. See Wei Guang Wang v. BIA,
437 F.3d 270,
3
1 273-74 (2d Cir. 2006). While a U.S. State Department report
2 states that the “CDP remained banned” and that the Chinese
3 government “continued to monitor, detain, and imprison” its
4 members in 2010, without any indication as to when those
5 practices began, other State Department reports Guo
6 submitted indicate that CDP members had been arrested and
7 detained since 1989, with a “wave of detentions” occurring
8 in 2003, prior to Guo’s 2005 merits hearing. Similarly, the
9 background evidence shows that activists returning to China
10 from abroad were detained before and after 2005.
11 Furthermore, the BIA did not err in affording minimal
12 weight to the letter from Guo’s mother because it was not
13 notarized and was authored by an interested party not
14 subject to cross-examination. See Xiao Ji Chen v. U.S.
15 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). As to
16 Guo’s online publications, the BIA reasonably found them
17 insufficient to demonstrate that the Chinese government
18 would become aware of his CDP activities because although
19 the 2010 State Department Human Rights Report on China
20 states that the Chinese government blocked subversive
21 foreign websites, it did not indicate that the government
22 tracked individual foreign journalists. See Hongsheng Leng
4
1 v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Substantial
2 evidence therefore supports the BIA’s finding that Guo did
3 not establish changed conditions for Christians in China.
4 See Jian Hui Shao, 546 F.3d at 169.
5 Because the evidence Guo submitted was insufficient to
6 establish a change in country conditions, the BIA did not
7 abuse its discretion in concluding that he failed to meet an
8 exception to the filing deadline, and consequently in
9 denying his motion to reopen as untimely. See 8 U.S.C.
10 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
5
