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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 14 th** **day of September, two thousand eleven.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **YI WENG, AKA YI DI WENG,** 13 Petitioner**,** 14 15 **v. 10-3775-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Shelley R. Goad, Assistant** 27 **Director; Russell J.E. Verby, Senior** 28 **Litigation Counsel, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Yi Weng, a native and citizen of the People’s Republic 5 of China, seeks review of an August 24, 2010, decision of 6 the BIA denying his motion to reopen. In re Yi Weng, aka Yi 7 Di Weng, No. A077 347 541 (B.I.A. Aug. 24, 2010). We assume 8 the parties’ familiarity with the underlying facts and 9 procedural history of this case. 10 We review the BIA’s denial of Weng’s motion to reopen 11 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 12 (2d Cir. 2006). An alien may file only one motion to reopen 13 and must do so within 90 days of the BIA’s final 14 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. 15 § 1003.2(c)(2). Although Weng’s motion was indisputably 16 untimely because it was filed more than six years after the 17 agency’s final order of removal, see8 U.S.C. 18 § 1229a(c)(7)(C)(i), there is no time limitation for filing 19 a motion to reopen if it is “based on changed country 20 conditions arising in the country of nationality or the 21 country to which removal has been ordered, if such evidence 223 is material and was not available and would not have been 1 discovered or presented at the previous proceeding.” 2 8 U.S.C. § 1229a(c)(7)(C)(ii). 3 The BIA did not abuse its discretion in finding that 4 Weng’s protests at the Chinese consulate in the United 5 States did not constitute materially changed conditions in 6 China excusing the untimely filing of his motion to reopen. 7
See Li Yong Zheng v. U.S. Dep’t of Justice , 416 F.3d 129, 8 130-31 (2d Cir. 2005) (explaining that a change in “personal 9 circumstances in the United States” did not constitute a 10 change in country conditions excusing the filing deadline 11 for motions to reopen). Moreover, the BIA did not abuse its 12 discretion in finding that Weng failed to demonstrate 13 materially changed circumstances in China based on his 14 village committee’s discovery of his protest activities in 15 the United States. The BIA reasonably relied on the IJ’s 16 underlying adverse credibility determination to decline to 17 credit the only evidence of such circumstances – an 18 untranslated village committee notice and his father’s 19 letter. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 20 (2d Cir. 2007) (relying on the doctrine falsus in uno, 21 falsus in omnibus to conclude that the agency may decline to 224 credit documentary evidence submitted with a motion to 1 reopen by an alien who was found not credible in the 2 underlying proceeding) (citing Siewe v. Gonzales , 480 F.3d 3 160, 170 (2d Cir. 2007)). Weng’s reliance on Paul v. 4 Gonzales, 444 F.3d 148, 154 (2d Cir. 2006), to challenge the 5 BIA’s decision is misplaced. In Paul , we held that the BIA 6 erred in denying a motion to reopen based entirely on the 7 movant’s failure to rebut the IJ’s underlying adverse 8 credibility finding because the IJ had explicitly credited 9 the movant’s claim that he was a Christian. See Paul , 444 10 F.3d at 154. Accordingly, the BIA was required to consider 11 objective country conditions regarding the mistreatment of 12 Christians in the movant’s country – evidence that did not 13 depend on the movant’s credibility for its probative force. 14 See id. at 152-55

. Here, unlike in Paul , the IJ did not 15 find any aspect of Weng’s testimony credible, and the BIA 16 reasonably declined to credit documents that depended upon 17 Weng’s veracity. See id.Accordingly, because the BIA did 18 not abuse its discretion in declining to credit Weng’s 19 individualized evidence purporting to detail changed 20 circumstances in China, see Qin Wen Zheng, 500 F.3d at 146- 21 49, its denial of his motion to reopen as untimely was not 22 in error. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. 23 § 1003.2(c). 245 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. Any pending request for 5 oral argument in this petition is DENIED in accordance with 6 Federal Rule of Appellate Procedure 34(a)(2), and Second 7 Circuit Local Rule 34.1(b). 8
FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11 12 13 14 15 16