10-4636-ag

Dai v. Holder

BIA

A077 272 724

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 4th day of January, two thousand twelve.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

SUSAN L. CARNEY,

 Circuit Judges.

_______________________________________

KE CHIANG DAI,

Petitioner, 

v. 10-4636-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Blair T. O’Connor, Assistant Director;

John B. Holt, Trial Attorney, Office

of Immigration Litigation, Civil

Division, United States Department of

Justice, Washington, D.C.
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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.

Ke Chiang Dai, a native and citizen of China, seeks

review of an October 18, 2010, order of the BIA denying his

motion to reopen. In re Ke Chiang Dai, No. A077 272 724

(B.I.A. Oct. 18, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

We have reviewed the agency’s denial of Dai’s motion to

reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d 515,

517 (2d Cir. 2006), and its consideration of evidence of

country conditions for substantial evidence, see Jian Hui Shao

v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Because Dai’s

motion to reopen was untimely, he was required to establish

that conditions in China had changed since his 2005 merits

hearing. See 8 U.S.C. § 1229a(c)(7)(C); Matter of S-Y-G-, 24

I. & N. Dec. 247, 253 (BIA 2007) (providing that in evaluating

evidence of changed country conditions, the BIA “compare[s]

the evidence of country conditions submitted with the motion

to those that existed at the time of the merits hearing

below”).
1This fact is readily verifiable by searching for a map of

“Wenzhou City, China” on http://maps.google.com/. See Burger v.

Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (citing the Federal

Rules of Evidence for the proposition that judicially noticed facts

must be not “subject to reasonable dispute” in that they are either

“generally known” or “capable of accurate and ready determination

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We note that there are several flaws in the agency’s

decision. For example, it concluded that Dai “failed to

establish that conditions in China and, more specifically, his

home province of Fujian, have changed fundamentally since his

merits hearing” (emphasis added), when Dai’s home province is

Zhejiang. It stated that there was no evidence in the record

that any increase in China’s harassment and abuse against

Christians around the Beijing Olympics had continued after the

Olympics when the Congressional-Executive Commission on

China’s 2009 report explicitly stated that the “pre-Olympics

campaign against Protestant activists and unregistered

congregations in 2008 showed few signs of abatement in 2009.”

Its decision to discount a letter from Dai’s friend Hong who

lived in Ouhai District, Wenzhou City because Dai lived in

Lucheng District, Wenzhou City and the two “never resided in

the same city or district” and thus did not explain how they

knew each other was arbitrary, given that Lucheng District and

Ouhai District are neighboring districts within the same

city.1 And its suggestion that Dai “does [not] have to attend
by resort to sources whose accuracy cannot reasonably be

questioned.”).

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a ‘mega-church’ or the like” to practice Catholicism may be an

inappropriate instruction about how Christians in China should

tailor their religious practices to avoid persecution. See

Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004)

(concluding that the agency erred in assuming “that one is not

entitled to claim asylum on the basis of religious persecution

if . . . one can escape the notice of the persecutors by

concealing one’s religion”).

Nevertheless, despite these flaws, we do not remand

because the agency’s overall assessment of Dai’s evidence of

changed country conditions is clear and supported by the

record. Cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 335 (2d Cir. 2006) (holding that an error does not

require remand if remand would be futile because “we can state

with confidence that the same decision would be made if we

were to remand”). Regardless of the BIA’s reasons for giving

little weight to Hong’s letter, we agree with the BIA that

Hong’s arrest for attending a house church did not establish

changed country conditions because house churches were illegal

at the time of Dai’s 2005 merits hearing and Hong’s arrest was

a single incident and thus did not itself demonstrate a change

in China’s policies.
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Moreover, although Dai presented background evidence

suggesting that religious activity was vigorously suppressed

in China before and after the 2008 Beijing Olympic Games, the

record is ambiguous concerning whether the repression

surrounding the Games represented changed conditions in China

or a continuation of the ongoing repression of Christians, and

whether it had continued in the years after the Games. Given

this ambiguity and because the agency considered and evaluated

Dai’s evidence, we find no error in its conclusion that he did

not establish changed country conditions. See Jian Hui Shao,

546 F.3d at 171 (“We do not ourselves attempt to resolve

conflicts in record evidence, a task largely within the

discretion of the agency.”); Siewe v. Gonzales, 480 F.3d 160,

167-68 (2d Cir. 2007) (“Where there are two permissible views

of the evidence, the factfinder’s choice between them cannot

be clearly erroneous. Rather, a reviewing court must defer to

that choice so long as the deductions are not illogical or

implausible.” (internal citations and quotations omitted)).

Because the BIA reasonably concluded that Dai did not

establish a change in country conditions, it did not abuse its

discretion by denying his motion to reopen as untimely. See

8 U.S.C. § 1229a(c)(7)(C). Accordingly, we decline to reach

Dai’s prima facie eligibility for relief and do not address
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his argument that the BIA erred in suggesting that he was

required to show that the Chinese authorities were aware of

his conversion to Catholicism.

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. Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk