10-4670-ag

Liu v. Holder

BIA

A077 710 510

 A072 434 570

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

New York, on the 23rd 4 day of November, two thousand eleven.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _________________________________________

12

13 MING GUAN LIU, JIN YU CHEN,

14 Petitioners, 

15

16 v. 10-4670-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONERS: Gary J. Yerman, New York, New York. 

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Ethan B. Kanter, Senior

27 Litigation Counsel; Paul F. Stone,

28 Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioners Ming Guan Liu and Jin Yu Chen, natives and

6 citizens of the People’s Republic of China, seek review of

7 the October 19, 2010, order of the BIA denying their motion

8 to reopen. In re Ming Guan Liu, Jin Yu Chen, Nos. A077 710

9 510, A072 434 570 (B.I.A. Oct. 19, 2010). We assume the

10 parties’ familiarity with the underlying facts and

11 procedural history of the case.

12 The BIA’s denial of Liu and Chen’s motion to reopen as

13 untimely was not an abuse of discretion. See Kaur v. BIA,

14 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). A motion to

15 reopen generally must be filed no later than 90 days after

16 the date on which the final administrative decision was

17 rendered in the proceedings sought to be reopened. 8 U.S.C.

18 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no

19 dispute that Liu and Chen’s 2010 motion was untimely, as the

20 final administrative order was issued in 2008. See 8 U.S.C.

21 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time

22 limitation does not apply to a motion to reopen if it is

23 “based on changed circumstances arising in the country of
3

1 nationality or in the country to which deportation has been

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

3 and could not have been discovered or presented at the

4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also

5 8 U.S.C. § 1229a(c)(7)(C)(ii). However, Liu and Chen failed

6 to establish changed circumstances in China. 

7 Liu and Chen converted to Christianity, prior to their

8 merits hearing in 2006. They argue that the reports they

9 submitted describe an increase in China’s human rights

10 abuses against Christians since the 2008 Olympics, and thus

11 demonstrate changed circumstances. However, the BIA’s

12 determination that the evidence failed to demonstrate

13 changed country circumstances since Liu and Chen’s 2006

14 hearing is supported by substantial evidence, as their

15 evidence did not show that any increase in suppression

16 continued after 2009. See Jian Hui Shao v. Mukasey, 546

17 F.3d 138, 169 (2d Cir. 2008). Moreover, the BIA did not

18 abuse its discretion in declining to credit Ms. Zhang’s

19 affidavit based on its inherent vagueness and the underlying

20 adverse credibility determination. See Qin Wen Zheng v.

21 Gonzales, 500 F.3d 143, 147 (2d Cir. 2007); Xiao Ji Chen v.

22 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). 

23 
4

1 Because the evidence Liu and Chen submitted was

2 insufficient to establish a change in country conditions,

3 the BIA did not abuse its discretion in concluding that they

4 failed to meet an exception to the filing deadline and,

5 accordingly, in denying their untimely motion to reopen. 

6 See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.

7 § 1003.2(c)(2), (3). 

8 For the foregoing reasons, the petition for review is

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

10 removal that the Court previously granted in this petition

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

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

13 oral argument in this petition is DENIED in accordance with

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

15 Circuit Local Rule 34.1(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18