Qindi Zhu v. Holder , 531 F. App'x 31 ( 2013 )

12-889
Zhu v. Holder
BIA
A096 011 152
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 25th day of July, two thousand thirteen.
PRESENT:
RICHARD C. WESLEY,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
QINDI ZHU, AKA QUIN PA ZHU,
Petitioner,
v. 12-889
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; James A. Hunolt
and Erica B. Miles, Senior
Litigation Counsel, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Qindi Zhu, a native and citizen of the People’s
Republic of China, seeks review of a February 13, 2012,
decision of the BIA denying his motion to reopen. In re
Qindi Zhu, No. A096 011 152 (B.I.A. Feb. 13, 2012). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case. We review the BIA’s
denial of a motion to reopen for abuse of discretion. See
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005). We find no
abuse of discretion in this case.
Zhu concedes that his motion to reopen was filed more
than 90 days after his administrative removal order became
final in 2005. It is therefore untimely unless it falls
within an exception to the time limitation that generally
governs motions to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Zhu contends
that the limitation does not apply here because his motion
is “based on changed circumstances arising in” China, 8
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U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
His arguments are unpersuasive.
Zhu’s motion to reopen is premised on a renewed claim
for asylum based on his alleged political activities with
the Chinese Democratic Party in the United States, beginning
after he was ordered removed in 2005. Zhu’s political
activities constitute a change in personal circumstances
arising in the United States, not a change of conditions
arising in China, and are therefore insufficient to
establish an exception to the 90-day time limitation. See
Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Wei
Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
Zhu alleges that conditions in China have changed as a
result of his political activities in the United States.
The BIA concluded that Zhu’s documentation failed to
establish changed conditions in China, and that conclusion
is supported by substantial evidence. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing BIA’s
factual findings regarding changed country conditions under
the substantial evidence standard).
The BIA’s decision indicates that it considered all of
the evidence included with Zhu’s third motion to reopen,
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including a letter from his wife. Contrary to Zhu’s
assertions, the BIA did not abuse its discretion in finding
the unsworn, uncorroborated letter unpersuasive and entitled
to limited evidentiary weight in light of a prior finding
that Zhu was not a credible witness. See Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 148 (2d Cir. 2007)(holding that the
BIA did not abuse is discretion in declining to credit
unauthenticated documents submitted with a motion to reopen
where alien had been found not credible in the underlying
proceedings).
The BIA also reasonably concluded that Zhu’s other
evidence failed to establish changed conditions in China, as
it reflected a continuation of, rather than a change in,
China’s treatment of political dissidents since the time of
Zhu’s hearing. Finally, Zhu’s argument that the BIA applied
an erroneously high burden of proof fails to recognize that
a petitioner seeking to reopen immigration proceedings must
meet a “heavy burden,” INS v. Abudu, 485 U.S. 94, 110
(1988).
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, Zhu’s pending
motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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