10-4022-ag

Dong v. Holder

BIA

A095 381 913

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 15th 4 day of August, two thousand eleven.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 GERARD E. LYNCH,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________

12

13 CUIHUA DONG,

14 Petitioner, 

15

16 v. 10-4022-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Wendy Tso, New York, New York

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Frances W. Fraser, Senior

27 Litigation Counsel; Steven F. Day,

28 Trial Attorney, Office of

29 Immigration Litigation, Civil

30 Division, United States Department

31 of Justice, 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 Cuihua Dong, a native and citizen of the People’s

6 Republic of China, seeks review of a September 15, 2010

7 order of the BIA denying her third motion to reopen. In re

8 Cuihua Dong, No. A095 381 913 (B.I.A. Sept. 15, 2010). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history of this case.

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

12 for 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)). We review the BIA’s

16 factual findings regarding country conditions under the

17 substantial evidence standard. Jian Hui Shao v. Mukasey,

18 546 F.3d 138, 169 (2d Cir. 2008). 

19 There is no dispute that Dong’s January 2010 motion to

20 reopen was untimely and number-barred because it was her

21 third motion to reopen and her administrative order of

22 removal became final in 2004. See 8 U.S.C.
3

1 § 1229a(c)(7)(A),(C)(i); 8 C.F.R. § 1003.2(c)(2). Although

2 Dong contends that the time and number limitations do not

3 apply to her motion to reopen as it is “based on changed

4 circumstances arising in the country of nationality,” 8

5 C.F.R. § 1003.2(c)(3)(ii), her arguments are unavailing.

6 In connection with her motion to reopen, Dong submitted

7 letters and supporting documents from Ling Li and Kang Qi

8 Zhang that purported to describe conditions in specific

9 areas of China. Each letter was unsworn and addressed to

10 “Respectful Judge,” the supporting documentation was

11 unauthenticated, and neither Li nor Zhang was from Dong’s

12 home village or explained his connection to Dong. Moreover,

13 certain documents relating to Li indicated he was punished

14 for a “smuggling crime,” not for violating China’s family

15 planning policy as Dong alleged. After considering them,

16 the BIA reasonably declined to accord evidentiary weight to

17 either the letters or the supporting documents. See Xiao Ji

18 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

19 2006) (finding that the weight accorded to the applicant’s

20 evidence in immigration proceedings lies largely within the

21 discretion of the agency); see also Jian Hui Shao, 546 F.3d

22 at 172-73 (concluding that the BIA reasonably determined
4

1 that evidence merely referencing the family planning

2 policy’s mandatory sterilization requirement without any

3 indication that such sterilizations are performed by force

4 is insufficient to establish an objectively reasonable fear

5 of persecution). Because Dong did not submit any other

6 evidence in support of her family planning claim, the BIA

7 did not abuse its discretion in denying her motion to reopen

8 on this basis. 

9 The BIA also reasonably refused to accord evidentiary

10 weight to a letter from Dong’s pastor, as it contained only

11 one sentence and failed to identify when Dong began

12 attending church services. See Xiao Ji Chen, 471 F.3d at

13 342. Moreover, as the BIA found, Dong's alleged conversion

14 to Christianity represented a change in her personal

15 circumstances, as opposed to changed country conditions in

16 China. See Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir.

17 2008). The current regulatory scheme generally prevents

18 aliens from reopening their removal proceedings by changing

19 their personal circumstances in response to changes in their

20 country. See Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d

21 Cir. 2006). In addition, the record supports the BIA’s

22 determination that, although China has engaged in
5

1 discrimination and abuse of Christians, Dong failed to

2 establish that conditions in China had changed fundamentally

3 since her merits hearing, as required to warrant reopening. 

4 See Xiao Ji Chen, 471 F.3d at 342 (holding that the weight

5 afforded to the applicant’s evidence in immigration

6 proceedings lies largely within the discretion of the

7 agency). Therefore, we find no abuse of discretion in the

8 BIA's denial of Dong's motion to reopen.

9 For the foregoing reasons, the petition for review is

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

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

12 Any pending request for oral argument in this petition is

13 DENIED in accordance with Federal Rule of Appellate

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

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18