Yong Xiu Lian v. Holder , 437 F. App'x 26 ( 2011 )


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  •          10-2121-ag
    Lian v. Holder
    BIA
    A077 957 412
    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 Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 13th day of September, two thousand eleven.
    5
    6       PRESENT:
    7                RALPH K. WINTER,
    8                JOSÉ A. CABRANES,
    9                ROBERT D. SACK,
    10                     Circuit Judges.
    11       ______________________________________
    12
    13       YONG XIU LIAN,
    14                Petitioner,
    15                                                              10-2121-ag
    16                        v.                                    NAC
    17
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL,
    20                Respondent.
    21       ______________________________________
    22
    23       FOR PETITIONER:               Lee Ratner, Michael Brown, New York,
    24                                     New York.
    25
    26       FOR RESPONDENT:               Tony West, Assistant Attorney
    27                                     General; Paul Fiorino, Senior
    28                                     Litigation Counsel; Judith R.
    29                                     O’Sullivan, Trial Attorney, Office
    30                                     of Immigration Litigation, Civil
    31                                     Division, United States Department
    32                                     of Justice, Washington, D.C.
    1
    2       UPON DUE CONSIDERATION of this petition for review of a
    3   Board of Immigration Appeals (“BIA”) decision, it is hereby
    4   ORDERED, ADJUDGED, AND DECREED that the petition for review
    5   is DENIED.
    6       Yong Xiu Lian, a native and citizen of the People’s
    7   Republic of China, seeks review of a May 13, 2010, decision
    8   of the BIA denying her motion to reopen her removal
    9   proceedings.     In re Yong Xiu Lian, No. A077 957 412 (B.I.A.
    10   May 13, 2010).    We assume the parties’ familiarity with the
    11   underlying facts and procedural history of the case.
    12       We review the BIA’s denial of a motion to reopen for
    13   abuse of discretion.     See Ali v. Gonzales, 
    448 F.3d 515
    , 517
    14   (2d Cir. 2006).    The BIA did not abuse its discretion in
    15   denying Lian’s motion to reopen as untimely.      See 
    id.
       A
    16   motion to reopen must generally be filed no later than 90
    17   days after the date on which the final administrative
    18   decision was rendered in the proceedings sought to be
    19   reopened.    See 8 U.S.C. § 1229a(c)(7)(C).   There is no
    20   dispute that Lian’s motion to reopen, filed in August 2009,
    21   more than four years after the BIA affirmed the IJ’s denial
    22   of her asylum application, was untimely.      See id.
    23
    2
    1       Furthermore, the BIA did not err in concluding that
    2   Lian failed to submit material evidence of changed country
    3   conditions as required to warrant consideration of her
    4   untimely motion.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).     Lian
    5   argues that the 2007 U.S. Department of State Profile of
    6   Asylum Claims and Country Conditions (“2007 Profile”) shows
    7   changed country conditions, pointing to the 2005
    8   implementation of regulations in China which gave certain
    9   legal rights to registered religious groups, but not to
    10   unregistered religious groups.    However, the 2007 Profile
    11   indicates that this regulation is not a change in China’s
    12   policy, stating while “[s]ome argue that the new regulations
    13   foster a more tolerant atmosphere . . . others point out
    14   that the new regulations merely codify past practice.”     In
    15   addition, although the 2007 Profile acknowledges China’s
    16   repression of unsanctioned churches, as the BIA found,
    17   similar conditions existed prior to Lian’s 2003 hearing, as
    18   reflected in evidence she submitted before the immigration
    19   judge (“IJ”).
    20       Lian further argues that the BIA erred in discounting a
    21   village committee notice she submitted with her motion to
    22   reopen.   However, the BIA did not err in according the
    23   village notice minimal weight because it was unsigned and
    24   unauthenticated.   See Qin Wen Zheng v. Gonzales, 
    500 F.3d 3
    1   143, 148 (2d Cir. 2007); Matter of H-L-H-, 
    25 I. & N. Dec. 2
       209, 214-15 (B.I.A. 2010).    Lian argues that Qin Wen Zheng
    3   does not support the BIA’s decision not to credit the notice
    4   because, unlike the petitioner in that case, the IJ found
    5   her testimony credible.   Contrary to Lian’s contention,
    6   however, the IJ did not find her credible, but rather found
    7   significant reasons to doubt her credibility before denying
    8   her claim on alternative grounds.     Accordingly, the BIA
    9   reasonably found that Lian failed to demonstrate a material
    10   change in country conditions, and did not abuse its
    11   discretion in denying her motion to reopen as untimely.      See
    12   8 U.S.C. § 1229a(c)(7)(C).
    13       For the foregoing reasons, the petition for review is
    14   DENIED.   As we have completed our review, any stay of
    15   removal that the Court previously granted in this petition
    16   is VACATED, and any pending motion for a stay of removal in
    17   this petition is DISMISSED as moot.     Any pending request for
    18   oral argument in this petition is DENIED in accordance with
    19   Federal Rule of Appellate Procedure 34(a)(2), and Second
    20   Circuit Local Rule 34.1(b).
    21                                 FOR THE COURT:
    22                                 Catherine O’Hagan Wolfe, Clerk
    23
    4
    

Document Info

Docket Number: 10-2121-ag

Citation Numbers: 437 F. App'x 26

Judges: Cabranes, Jose, Ralph, Robert, Sack, Winter

Filed Date: 9/13/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023