Filed: Nov. 04, 2014
Latest Update: Mar. 02, 2020
Summary: 13-865 Lai v. Holder BIA A078 853 707 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: 13-865 Lai v. Holder BIA A078 853 707 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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13-865
Lai v. Holder
BIA
A078 853 707
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 4th day of November, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 SUSAN L. CARNEY,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 Feng Qing Lai,
14 Petitioner,
15
16 v. 13-865
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Daniel Goldman, Senior
27 Litigation Counsel; Erik R. Quick,
28 Trial Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 Feng Qing Lai, a native and citizen of the
6 People’s Republic of China, seeks review of a February 12,
7 2013, decision of the BIA denying his motion to reopen. In
8 re Feng Qing Lai, No. A078 853 707 (B.I.A. Feb. 12, 2013).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the denial of a motion to reopen for an abuse
12 of discretion, “mindful that motions to reopen ‘are
13 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
14 2006) (quoting INS v. Doherty,
502 U.S. 314, 323 (1992)).
15 An applicant may file a motion to reopen within 90 days of
16 the date on which a final administrative decision was
17 rendered in the proceeding sought to be reopened. See 8
18 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
19 However, the 90-day limitation period does not apply to a
20 motion to reopen that is “based on changed circumstances
21 arising in the country of nationality or in the country to
22 which deportation has been ordered, if such evidence is
23 material and was not available and could not have been
2
1 discovered or presented at the previous hearing.” 8 C.F.R.
2 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
3 We review the BIA’s factual findings under the substantial
4 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
5 138, 169 (2d Cir. 2008).
6 As the BIA determined, Lai’s adoption of Christianity
7 and church attendance in the United States constitute self-
8 induced changes in personal circumstances, which are
9 insufficient to excuse the untimeliness of his motion. See
10 Wei Guang Wang v. BIA,
437 F.3d 270, 273-74 (2d Cir. 2006);
11 Yuen Jin v. Mukasey,
538 F.3d 143, 155 (2d Cir. 2008).
12 In addition, the BIA’s determination that Lai failed to
13 establish a material change in conditions in China is
14 supported by substantial evidence. See Jian Hui Shao,
546
15 F.3d at 169. The BIA reasonably found that the evidence
16 showed conditions in China similar to those at the time of
17 Lai’s merits hearing. See 8 C.F.R. § 1003.2(c)(3)(ii); In
18 re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In
19 determining whether evidence accompanying a motion to reopen
20 demonstrates a material change in country conditions that
21 would justify reopening, [the BIA] compares the evidence of
22
3
1 country conditions submitted with the motion to those that
2 existed at the time of the merits hearing below.”).
3 We have not yet addressed whether a change particular
4 to an alien can constitute a change in country conditions,
5 i.e. whether the Chinese government’s awareness of Lai’s
6 Christian faith is a change in conditions sufficient for
7 reopening. We do not reach the issue here because the BIA
8 did not abuse its discretion in declining to give weight to
9 Lai’s individualized documents from China, which were his
10 only evidence of the government’s awareness of his new
11 religious practice. Lai’s evidence included letters from
12 his sister and mother stating that Chinese authorities had
13 ordered that he return to China for punishment, a notice
14 purportedly from the Fuzhou City Luoxing Street Yanshan
15 Neighborhood Residents Committee, and a summons purportedly
16 from the Fuzhou City Public Security Bureau, demanding that
17 he cease disseminating religious materials from the United
18 States and return to China immediately for punishment. The
19 BIA reasonably concluded that those documents should be
20 afforded little weight because they were unauthenticated and
21 unspecific with respect to the punishment Lai would face.
22 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342
4
1 (2d Cir. 2006) (the weight afforded to the evidence lies
2 largely within the BIA’s discretion); see also Matter of
3 H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (the
4 agency may give little weight to documents drafted by
5 interested witnesses not subject to cross examination),
6 rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d
7 130 (2d Cir. 2012).
8 Accordingly, as Lai did not meet his burden to show
9 any change in conditions in China, the BIA did not abuse its
10 discretion in denying his motion to reopen as untimely. See
11 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
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