Yang Kong v. Holder , 543 F. App'x 64 ( 2013 )

12-4266
Kong v. Holder
BIA
A093 409 907
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 5th day of November, two thousand thirteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 YANG KONG,
14 Petitioner,
15
16 v. 12-4266
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Charles Christophe, Christophe Law
24 Group, PC, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; David V. Bernal,
28 Assistant Director, Margaret Kuehne
29 Taylor, Trial Attorney, 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 Yang Kong, a native and citizen of China,
6 seeks review of an October 3, 2012 decision of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Yang Kong, No. A093 409 907 (B.I.A. Oct. 3, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision. See 8 U.S.C. § 1229a(c)(7)(C);
17 8 C.F.R. § 1003.2(c)(2). There is no dispute that Kong’s
18 motion to reopen, filed in March 2012, was untimely because
19 the BIA issued a final order of removal in April 2010.
20 Kong contends, however, that his conversion to
21 Christianity in the United States, his recent membership in
22 the Chinese Democratic Party (“CDP”), and the Chinese
2
1 government’s awareness of his political activities in the
2 United States, constitute materially changed conditions
3 excusing his untimely motion. See 8 U.S.C.
4 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).
5 As to Kong's CDP claim, the BIA did not abuse its
6 discretion in finding that he failed to demonstrate his
7 prima facie eligibility for relief because Kong failed to
8 support or otherwise corroborate his CDP membership with
9 credible evidence. See Hongsheng Leng v. Mukasey, 528 F.3d
10 135, 142-43 (2d Cir. 2008); see also Jian Hui Shao v.
11 Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that
12 an alien’s “ability to secure reopening depends on a
13 demonstration of prima facie eligibility for [relief], which
14 means []he must show a realistic chance that []he will be
15 able to obtain such relief”) (internal quotation marks and
16 citation omitted).
17 Contrary to Kong’s contention, the BIA did not abuse
18 its discretion in finding the unsworn letter from his wife
19 to be unreliable, given the agency’s prior determination
20 that Kong was not a credible witness. See Qin Wen Zheng v.
21 Gonzales, 500 F.3d 143, 147-49 (2d Cir. 2007) (concluding
22 that an adverse credibility finding provided reasonable
3
1 basis for rejecting the authenticity of an unauthenticated
2 document submitted by the party). While Kong is correct
3 that the BIA did not specifically address his affidavit,
4 this Court does “not demand that the BIA expressly parse or
5 refute on the record each individual argument or piece of
6 evidence offered by the petitioner,” Jian Hui Shao, 546 F.3d
7 at 169 (internal quotation marks and citation omitted), and
8 we presume that the agency “has taken into account all of
9 the evidence before [it], unless the record compellingly
10 suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice,
11 471 F.3d 315, 338 n. 17 (2d Cir. 2006). Here, nothing
12 suggests that the agency did not consider the affidavit and,
13 in light of the adverse credibility finding, the BIA did not
14 act unreasonably by declining to rely on it. See Qin Wen
15 Zheng, 500 F.3d at 147-48.
16 With respect to Kong’s Christianity claim, none of
17 Kong’s evidence addressed China’s treatment of Christians at
18 the time of his merits hearing. This was fatal to his
19 motion. See In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.
20 2007) (“In determining whether evidence accompanying a
21 motion to reopen demonstrates a material change in country
22 conditions that would justify reopening, [the BIA]
4
1 compare[s] the evidence of country conditions submitted with
2 the motion to those that existed at the time of the merits
3 hearing below.”).
4 While Kong contends that the newspaper articles he
5 submitted demonstrated worsening conditions for Christians
6 in China, the general statements in these articles that
7 Chinese authorities had engaged in a “crackdown” do not
8 reflect the conditions that existed in 2008, or provide
9 material evidence of a change in country conditions. See
10 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
11 Finally, nothing in the United States Department of State
12 report compels the conclusion that the treatment of
13 Christians in China has worsened since 2008. See 8 U.S.C.
14 §1252(b)(4)(B) (the BIA’s factual findings are “conclusive
15 unless any reasonable adjudicator would be compelled to
16 conclude to the contrary”).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DISMISSED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
23 Federal Rule of Appellate Procedure 34(a)(2), and Second
5
1 Circuit Local Rule 34.1(b).
2 FOR THE COURT:
3 Catherine O’Hagan Wolfe, Clerk
6