Filed: Oct. 28, 2013
Latest Update: Mar. 28, 2017
Summary: 12-3428 Yong v. Holder BIA A088 524 523 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
Summary: 12-3428 Yong v. Holder BIA A088 524 523 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..
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12-3428
Yong v. Holder
BIA
A088 524 523
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 28th day of October, two thousand thirteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SHEAU FONG YONG,
14 Petitioner,
15
16 v. 12-3428
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Daniel E. Goldman,
27 Senior Litigation Counsel; Brianne
28 Whelan Cohen, Trial Attorney, Office
29 of Immigration Litigation, United
30 States Department of Justice,
31 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 Sheau Fong Yong, a native and citizen of Indonesia,
6 seeks review of an August 6, 2012, decision of the BIA
7 denying her motion to reopen. In re Sheau Fong Yong, No.
8 A088 524 523 (B.I.A. Aug. 6, 2012). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We have reviewed the BIA’s denial of Yong’s motion to
12 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
13 515, 517 (2d Cir. 2006) (per curiam). Yong argues that her
14 case should have been reopened pursuant to 8 U.S.C.
15 § 1229a(c)(7)(C)(ii), which allows reopening at anytime
16 “based on changed country conditions arising in the country
17 of nationality or the country to which removal has been
18 ordered, if such evidence is material and was not available
19 and would not have been discovered or presented at the
20 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
21 also 8 C.F.R. § 1003.2(c)(3)(ii). We find that the BIA did
22 not abuse its discretion here.
2
1 In denying Yong’s motion, the BIA found that the
2 evidence of Yong’s Bethel Church membership since 2006 was
3 not “previously unavailable” and could have been submitted
4 at the time of her 2010 hearing before the IJ. Yong
5 correctly points out that the BIA erred in basing its denial
6 in part on this fact because the evidence of the Bethel
7 Church bombing in Indonesia was the evidence Yong claimed
8 was new and demonstrated changed country conditions; whereas
9 the evidence of her church membership was submitted simply
10 to prove the materiality of the bombing to Yong’s claim.
11 Nonetheless, to remand for the BIA to correct this finding
12 would be futile, as it alternately found that none of Yong’s
13 new country conditions evidence -– including evidence of the
14 bombing of Bethel Church -– established significantly
15 worsened conditions in Indonesia material to Yong’s claim.
16 See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir.2008)
17 (noting that remand is futile when the Court can
18 “confidently” “predict that the agency would reach the same
19 decision absent” the errors that were made) (quoting Xiao Ji
20 Chen v. Mukasey,
471 F.3d 315, 339 (2d Cir. 2006)).
21 Indeed, we find no error in the BIA’s conclusion that
22 Yong failed to demonstrate materially changed conditions
3
1 such that further consideration would have been warranted in
2 reopened proceedings, as the record evidence did not
3 indicate a change in conditions in Indonesia, but rather
4 reflected a continuation of sporadic religious violence
5 targeted towards ethnic Chinese Christians, which existed at
6 the time of the Yong’s merits hearing. See 8 U.S.C.
7 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Matter of
8 S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (noting that in
9 evaluating evidence of changed country conditions, the BIA
10 “compare[s] the evidence of country conditions submitted
11 with the motion to those that existed at the time of the
12 merits hearing below”); see also Siewe v. Gonzales, 480 F.3d
13 160, 167 (2d Cir. 2007) (“where there are two permissible
14 views of the evidence, the fact finder’s choice between them
15 cannot be clearly erroneous”). Moreover, as to her prima
16 facie eligibility for relief, the BIA did not err in finding
17 that the bombing did not reflect significantly worsened
18 conditions, that neither Yong nor any of her family members
19 had ever attended the Bethel Church, or that Yong could not
20 avoid persecution by relocating to another part of
21 Indonesia. See Jian Xing Huang v. INS,
421 F.3d 125, 129
22 (2d Cir. 2005) (per curium) (absent “solid support” in the
23 record, a fear of future persecution was “speculative at
4
1 best.”); see also 8 C.F.R. § 1003.2(c)(1) (requiring that a
2 motion to reopen be based on new evidence material to the
3 movant’s eligibility for asylum). Accordingly, the BIA did
4 not abuse its discretion in denying Yong’s motion to reopen.
5 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii);
6 see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
7 Cir. 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
5
