12-2158

Yang v. Holder

BIA

A077 354 039

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 17th 4 day of October, two thousand thirteen.

5

6

7 PRESENT:

8 DENNIS JACOBS,

9 DENNY CHIN,

10 SUSAN L. CARNEY,

11 Circuit Judges. 

12 _____________________________________

13

14 FANG JIN YANG, AKA OLIVIA CHUNG,

15 Petitioner, 

16

17 v. 12-2158

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _____________________________________

23

24 FOR PETITIONER: Garry J. Yerman, New York, New York.

25

26 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

27 Attorney General; Leslie McKay,

28 Assistant Director; Ilissa M. Gould,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Fang Jin Yang, a native and citizen of the People’s

6 Republic of China, seeks review of a May 8, 2012, decision

7 of the BIA denying her motion to reopen. In re Fang Jin

8 Yang, No. A077 354 039 (B.I.A. May 8, 2012). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history. 

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

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

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

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

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

16 considers relevant evidence of country conditions in

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

18 findings for substantial evidence. See Jian Hui Shao v.

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

20 An alien may file a motion to reopen within 90 days of

21 the agency’s final administrative decision. 8 U.S.C.

22 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Although Yang’s

2
1 motion was indisputably untimely because it was filed more

2 than eight years after the agency’s final order of removal,

3 see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time

4 limitation for a motion to reopen that is “based on changed

5 country conditions arising in the country of nationality or

6 the country to which removal has been ordered, if such

7 evidence is material and was not available and would not

8 have been discovered or presented at the previous

9 proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

10 8 C.F.R. § 1003.2(c)(3)(ii).

11 The BIA found no material change because the evidence

12 Yang adduced demonstrated the continual targeting of

13 unregistered religious groups since the time of her last

14 hearing rather than worsened conditions for individuals

15 similarly situated to her. See 8 U.S.C.

16 § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at

17 169. Contrary to Yang’s contention, the record does not

18 compel the conclusion that BIA failed to consider any

19 material evidence of changed country conditions. See Xiao

20 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

21 Cir. 2006). Accordingly, the BIA did not abuse its

22 discretion in denying Yang’s motion to reopen as untimely. 

23 See 8 U.S.C. § 1229a(c)(7)(C). 

3
1 For the foregoing reasons, the petition for review is

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

3 removal that the Court previously granted in this petition

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

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

6 oral argument in this petition is DENIED in accordance with

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

8 Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

4