09-4814-ag

Tang v. Holder

BIA

A079 324 304

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

4 New York, on the 3 day of September, two thousand ten. rd

5

6 PRESENT:

7 ROGER J. MINER,

8 GUIDO CALABRESI,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _____________________________________

12

13 XIU QIN TANG,

14

15 Petitioner, 

16

17 v. 09-4814-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21

22 Respondent.

23 _____________________________________

24

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

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Linda S. Wernery, Assistant

29 Director; Gerald M. Alexander, Trial

30 Attorney, Office of Immigration
2

1 Litigation, Civil Division, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

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

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

8 review is DENIED.

9 Xiu Qin Tang, a native and citizen of the People’s

10 Republic of China, seeks review of a October 30, 2009 order

11 of the BIA denying her motion to reopen. In re Xiu Qin Tang,

12 No. A079 324 304 (B.I.A. Oct. 30, 2009). We assume the

13 parties’ familiarity with the underlying facts and

14 procedural history of this case.

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

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

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

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

19 Doherty, 502 U.S. 314, 322-23 (1992)). There is no dispute

20 that Tang’s March 2009 motion to reopen was untimely and

21 numerically barred because the BIA entered a final

22 administrative order in September 2003 and she had

23 previously filed a motion to reopen in July 2006. See

24 8 C.F.R. § 1003.2(c)(2). Although Tang contends that the
3

1 time and number limitations do not apply to her motion to

2 reopen as it is “based on changed circumstances arising in

3 the country of nationality” and the evidence she submitted

4 “is material and was not available and could not have been

5 discovered or presented at the previous hearing,” 8 C.F.R.

6 § 1003.2(c)(3)(ii), her arguments are unavailing.

7 As an initial matter, there is no indication that the

8 BIA ignored any material evidence she submitted. See Jian

9 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008)

10 (recognizing that this Court has rejected the notion that

11 the agency must “expressly parse or refute on the record

12 each individual argument or piece of evidence offered by the

13 petitioner” (internal quotation marks omitted)); see also

14 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337

15 n.17 (2d Cir. 2006) (presuming that the agency “has taken

16 into account all of the evidence before [it], unless the

17 record compellingly suggests otherwise”). Moreover,

18 contrary to Tang’s argument, the record supports the BIA’s

19 determination that, although China has engaged in

20 discrimination and abuse against Christians, Tang failed to

21 establish that conditions in China and her home province of

22 Fujian had changed fundamentally since her merits hearing,
4

1 as required to warrant reopening. See Siewe v. Gonzales,

2 480 F.3d 160, 167 (2d Cir. 2007) (“Where there are two

3 permissible views of the evidence, the factfinder’s choice

4 between them cannot be clearly erroneous.” (internal

5 quotation marks omitted)); Xiao Ji Chen, 471 F.3d at 342

6 (holding that the weight afforded to the applicant’s

7 evidence in immigration proceedings lies largely within the

8 discretion of the IJ). Because the BIA reasonably found

9 that Tang failed to establish changed country conditions

10 sufficient to warrant reopening, its denial of Tang’s motion

11 to reopen was not an abuse of discretion. Accordingly,

12 because Tang failed to make that threshold showing, we need

13 not reach her argument that she established her prima facie

14 eligibility for relief.

15 For the foregoing reasons, the petition for review is

16 DENIED. As we have completed our review, the pending motion

17 for a stay of removal in this petition is DENIED as moot. 

18 Any pending request for oral argument in this petition is

19 DENIED in accordance with Federal Rule of Appellate

20 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23

24