Filed: Apr. 02, 2014
Latest Update: Mar. 02, 2020
Summary: 13-2637 Li v. Holder BIA A095 850 517 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
Summary: 13-2637 Li v. Holder BIA A095 850 517 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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13‐2637
Li v. Holder
BIA
A095 850 517
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.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 2nd day of April, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
YA QIN LI,
Petitioner,
v. 13‐2637
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas D. Barra, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;
Edward J. Duffy, Senior Litigation Counsel; Paul
Fiorino, Senior Litigation Counsel, Office of
Immigration Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
Petitioner Ya Qin Li, a native and citizen of the People’s Republic of China,
seeks review of the June 12, 2013, decision of the BIA denying her motion to
reopen, In re Ya Qin LI, No. A095 850 517 (B.I.A. June 12, 2013). We assume the
parties’ familiarity with the underlying facts and procedural history in this case.
The BIA’s denial of Li’s motion to reopen as untimely and number‐barred
was not an abuse of discretion. See Kaur v. B.I.A., 413 F.3d 232, 233 (2d Cir. 2005)
(per curiam). An alien may file one motion to reopen no later than 90 days after
the date on which the final administrative decision has been rendered in the
proceedings sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). There is no dispute that Li’s 2013 motion was untimely and
number‐barred, as it was her second motion to reopen, and the final
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administrative decision was issued in 2004. However, the time and number
limitations do not apply to a motion to reopen if it is “based on changed
circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available
and could not have been discovered or presented at the previous hearing.” 8
C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
Substantial evidence supports the BIA’s determination that Li failed to
demonstrate changed country conditions in China. See Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008). “In determining whether evidence accompanying a
motion to reopen demonstrates a material change in country conditions that
would justify reopening, [the BIA] compare[s] the evidence of country conditions
submitted with the motion to those that existed at the time of the merits hearing
below.” Matter of S‐Y‐G‐, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).
The BIA may also deny a motion to reopen when the movant has not
established her prima facie eligibility for the underlying relief sought. See I.N.S. v.
Abudu, 485 U.S. 94, 104‐05 (1988). The BIA did not abuse its discretion in
concluding that Li failed to establish an objectively reasonable fear of future
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persecution based on her practice of Falun Gong because she did not show that
anyone in China was aware of that practice. See Y.C. v. Holder, 741 F.3d 324, 333‐
34 (2d Cir. 2013); Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008).
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, any stay of removal that the Court previously granted in
this petition is VACATED, and any pending motion for a stay of removal in this
petition is DISMISSED as moot. Any pending request for oral argument in this
petition is DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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