holding that BIA did not err in according village notice minimal weight in motion to reopen “because it was unsigned and unauthenticated”
How later courts described this case
- holding that BIA did not err in according village notice minimal weight in motion to reopen “because it was unsigned and unauthenticated”
Written by the judges who cited it.
The opinion
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