10-3775-ag

Weng v. Holder

BIA

A077 347 541

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 14th 4 day of September, two thousand eleven.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _______________________________________

12

13 YI WENG, AKA YI DI WENG,

14 Petitioner, 

15

16 v. 10-3775-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

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23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

24 York.

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26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Shelley R. Goad, Assistant

28 Director; Russell J.E. Verby, Senior

29 Litigation Counsel, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

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 Yi Weng, a native and citizen of the People’s Republic

6 of China, seeks review of an August 24, 2010, decision of

7 the BIA denying his motion to reopen. In re Yi Weng, aka Yi

8 Di Weng, No. A077 347 541 (B.I.A. Aug. 24, 2010). We assume

9 the parties’ familiarity with the underlying facts and

10 procedural history of this case.

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

12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien may file only one motion to reopen

14 and must do so within 90 days of the BIA’s final

15 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.

16 § 1003.2(c)(2). Although Weng’s motion was indisputably

17 untimely because it was filed more than six years after the

18 agency’s final order of removal, see 8 U.S.C. 

19 § 1229a(c)(7)(C)(i), there is no time limitation for filing

20 a motion to reopen if it is “based on changed country

21 conditions arising in the country of nationality or the

22 country to which removal has been ordered, if such evidence
3

1 is material and was not available and would not have been

2 discovered or presented at the previous proceeding.” 

3 8 U.S.C. § 1229a(c)(7)(C)(ii).

4 The BIA did not abuse its discretion in finding that

5 Weng’s protests at the Chinese consulate in the United

6 States did not constitute materially changed conditions in

7 China excusing the untimely filing of his motion to reopen. 

8 See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,

9 130-31 (2d Cir. 2005) (explaining that a change in “personal

10 circumstances in the United States” did not constitute a

11 change in country conditions excusing the filing deadline

12 for motions to reopen). Moreover, the BIA did not abuse its

13 discretion in finding that Weng failed to demonstrate

14 materially changed circumstances in China based on his

15 village committee’s discovery of his protest activities in

16 the United States. The BIA reasonably relied on the IJ’s

17 underlying adverse credibility determination to decline to

18 credit the only evidence of such circumstances – an

19 untranslated village committee notice and his father’s

20 letter. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49

21 (2d Cir. 2007) (relying on the doctrine falsus in uno,

22 falsus in omnibus to conclude that the agency may decline to
4

1 credit documentary evidence submitted with a motion to

2 reopen by an alien who was found not credible in the

3 underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d

4 160, 170 (2d Cir. 2007)). Weng’s reliance on Paul v.

5 Gonzales, 444 F.3d 148, 154 (2d Cir. 2006), to challenge the

6 BIA’s decision is misplaced. In Paul, we held that the BIA

7 erred in denying a motion to reopen based entirely on the

8 movant’s failure to rebut the IJ’s underlying adverse

9 credibility finding because the IJ had explicitly credited

10 the movant’s claim that he was a Christian. See Paul, 444

11 F.3d at 154. Accordingly, the BIA was required to consider

12 objective country conditions regarding the mistreatment of

13 Christians in the movant’s country – evidence that did not

14 depend on the movant’s credibility for its probative force. 

15 See id. at 152-55. Here, unlike in Paul, the IJ did not

16 find any aspect of Weng’s testimony credible, and the BIA

17 reasonably declined to credit documents that depended upon

18 Weng’s veracity. See id. Accordingly, because the BIA did

19 not abuse its discretion in declining to credit Weng’s

20 individualized evidence purporting to detail changed

21 circumstances in China, see Qin Wen Zheng, 500 F.3d at 146-

22 49, its denial of his motion to reopen as untimely was not

23 in error. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

24 § 1003.2(c). 
5

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

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