recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” (internal quotation marks omitted)
How later courts described this case
- recognizing that the Court has rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
10-1999-ag
Guan v. BIA
BIA
A078 733 219
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26th day of April, two thousand twelve.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
BING GUAN,
Petitioner,
v. 10-1999-ag
NAC
BOARD OF IMMIGRATION APPEALS,
Respondent.
______________________________________
FOR PETITIONER: Peter S. Gordon, Forest Hills, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; James A. Hunolt, Senior
Litigation Counsel; C. Frederick
Sheffield, Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Bing Guan, a native and citizen of China, seeks review
of a BIA order denying her motion to reopen her removal
proceedings. In re Bing Guan, No. A078 733 219 (B.I.A. May
6, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case. We
review the BIA’s denial of a motion to reopen for abuse of
discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006).
Because Guan’s motion was untimely and number-barred
she was required to establish changed country conditions to
except it from the time and number limitations. See
8 U.S.C. § 1229a(c)(7)(C). Substantial evidence supports
the BIA’s conclusion that she did not establish changed
country conditions. See Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008).
As the BIA noted, Guan’s adoption of Falun Gong
constituted a change in her personal circumstances, not a
change in conditions in China. See Li Yong Zheng v. U.S.
Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005); Yuen
Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008).
Contrary to Guan’s argument, the record does not compel
the conclusion that the BIA ignored her evidence of
conditions in China because the BIA expressly noted that she
had presented reports and articles concerning country
conditions. See Shao, 546 F.3d at 169 (recognizing that the
Court has rejected the notion that the agency must
“expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner”
(internal quotation marks omitted)); Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
(noting that we presume that the agency “has taken into
account all of the evidence before [it], unless the record
compellingly suggests otherwise”).
Having considered that evidence, the agency reasonably
concluded that Guan did not establish a change in country
conditions. While some evidence in the record indicated
that human rights conditions in China deteriorated during
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the time of the 2008 Olympics, there was also evidence -
including a U.S. State Department human rights report on
China - indicating that the repression of Falun Gong
adherents has been constant and ongoing since the time of
Guan’s hearing in 2001. Thus, Guan did not submit evidence
compelling the conclusion that there had been a significant
increase in the persecution of Falun Gong adherents between
2001 and 2008. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d
Cir. 2007) (“Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be
clearly erroneous.” (internal quotation marks omitted)).
Accordingly, the BIA did not abuse its discretion in denying
Guan’s motion.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3