12-2484

Lian v. Holder

BIA

A077 660 310

A079 306 964

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,

on the 19th 4 day of September, two thousand thirteen.

5

6

7 PRESENT:

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 CHRISTOPHER F. DRONEY,

11 Circuit Judges. 

12 _____________________________________

13

14 DAN YU LIAN, QING DENG ZHENG,

15 Petitioners, 

16

17 v. 12-2484

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONERS: Adedayo O. Idowu, New York, New

25 York.

26

27 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

28 Assistant Attorney General; Francis

29 W. Fraser, Senior Litigation

30 Counsel; W. Daniel Shieh, Trial
1 Attorney, Office of Immigration

2 Litigation, United States Department

3 of Justice, Washington, D.C.

4 UPON DUE CONSIDERATION of this petition for review of a

5 decision of the Board of Immigration Appeals (“BIA”), it is

6 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

7 review is DENIED.

8 Dan Yu Lian and Qing Deng Zheng, natives and citizens

9 of the People’s Republic of China, seek review of a May 25,

10 2012, decision of the BIA denying their motion to reopen. 

11 In re Dan Yu Lian, Qing Deng Zheng, Nos. A077 660 310, A079

12 306 964 (B.I.A. May 25, 2012). We assume the parties’

13 familiarity with the underlying facts and procedural history

14 of this case. 

15 We review the BIA’s denial of a motion to reopen for

16 abuse of discretion, mindful of the Supreme Court’s

17 admonition that such motions are “disfavored.” Ali v.

18 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

19 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA

20 considers relevant evidence of country conditions in

21 evaluating a motion to reopen, we review the BIA’s factual

22 findings under the substantial evidence standard. See Shao

23 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

2
1 The BIA did not err in denying Lian and Zheng’s motion

2 to reopen as untimely and number-barred. Aliens may file

3 only one motion to reopen within 90 days of the agency’s

4 final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),

5 (C)(i); 8 C.F.R. § 1003.2(c)(2). Although their motion was

6 indisputably untimely and number-barred because it was filed

7 more than six years after the agency’s final order of

8 removal and it was their third such motion, see 8 U.S.C.

9 § 1229a(c)(7)(A), (C)(i), there are no time or numerical

10 limitations for filing a motion to reopen if it is “based on

11 changed country conditions arising in the country of

12 nationality or the country to which removal has been

13 ordered, if such evidence is material and was not available

14 and would not have been discovered or presented at the

15 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

16 also 8 C.F.R. § 1003.2(c)(3)(ii).

17 The BIA did not err in concluding that Lian’s newly

18 commenced Falun Gong practice constituted a change in her

19 personal circumstances rather than a change in country

20 conditions sufficient to excuse the applicable limitations. 

21 See Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

22 Cir. 2005); see also Yuen Jin v. Mukasey, 538 F.3d 143, 155

3
1 (2d Cir. 2008). Moreover, the BIA reasonably found that

2 Lian and Zheng’s evidence did not demonstrate a material

3 change in country conditions because that evidence did not

4 indicate that conditions had worsened for Falun Gong

5 practitioners in China since the time of their hearing

6 before the IJ. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

7 Shao, 546 F.3d at 169-72. Accordingly, the BIA did not

8 abuse its discretion in denying Lian and Zheng’s motion to

9 reopen as untimely and number-barred. See 8 U.S.C.

10 § 1229a(c)(7)(A), (C). 

11 For the foregoing reasons, the petition for review is

12 DENIED. As we have completed our review, any stay of

13 removal that the Court previously granted in this petition

14 is VACATED, and any pending motion for a stay of removal in

15 this petition is DISMISSED as moot. Any pending request for

16 oral argument in this petition is DENIED in accordance with

17 Federal Rule of Appellate Procedure 34(a)(2), and Second

18 Circuit Local Rule 34.1(b).

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk

4