22-6464

Wenzhe Cui v. Garland

BIA

A200 729 820

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 for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 15th day of March, two thousand twentyfour. 

PRESENT: 

RAYMOND J. LOHIER, JR.,

RICHARD J. SULLIVAN,

MARIA ARAÚJO KAHN,

Circuit Judges. 

_____________________________________ 

WENZHE CUI, 

 Petitioner, 

v. 22-6464 

 NAC 

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 
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FOR PETITIONER: Zhong Yue Zhang, Zhang & Associates, LLC, 

Flushing, NY. 

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Erica B. Miles, Assistant 

Director, Rachel P. Berman-Vaporis, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED. 

Petitioner Wenzhe Cui, a native and citizen of the People’s Republic of 

China, seeks review of a September 9, 2022 decision of the BIA denying his motion 

to reopen his removal proceedings. In re Wenzhe Cui, No. A 200 729 820 (B.I.A. 

Sept. 9, 2022). We assume the parties’ familiarity with the underlying facts and 

procedural history. 

We review the BIA’s denial of a motion to reopen for abuse of discretion and 

any underlying factfinding for substantial evidence. See Jian Hui Shao v. Mukasey, 

546 F.3d 138, 168–69 (2d Cir. 2008). The BIA abuses its discretion when it acts “in 

an arbitrary or capricious manner,” such as when it “provides no rational 
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explanation, inexplicably departs from established policies, is devoid of any 

reasoning, or contains only summary or conclusory statements.” Li Yong Cao v. 

U.S. Dep’t of Just., 421 F.3d 149, 157 (2d Cir. 2005) (internal quotation marks 

omitted). “[T]he administrative findings of fact are conclusive unless any 

reasonable adjudicator would be compelled to conclude to the contrary.” 

8 U.S.C. § 1252(b)(4)(B). 

A noncitizen seeking to reopen must file a motion to reopen within ninety 

days of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.2(c)(2). However, the ninety-day deadline does not apply when, as alleged 

here, the motion to reopen is premised “on changed country conditions arising in 

the country of nationality or the country to which removal has been ordered, if 

such evidence is material and was not available and would not have been 

discovered or presented at the previous proceeding.” 8 U.S.C. 

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). If a petitioner shows his

motion is timely, then he must meet the “heavy burden” of establishing his prima 

facie eligibility for asylum, meaning that “the proffered new evidence would likely 

alter the result in h[is] case.” Jian Hui Shao, 546 F.3d at 168 (quoting INS v. Abudu, 
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485 U.S. 94, 110 (1988)). That burden is heavier still when the initial application 

was denied based on an adverse credibility finding, as the motion to reopen must 

“either overcome the prior determination [of adverse credibility] or show that the 

new claim is independent of the evidence that was found [to be] not credible.” 

Matter of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020); see also Kaur v. BIA, 413 F.3d 232, 

234 (2d Cir. 2005). Moreover, the agency may still take the adverse credibility 

finding into account when considering the new and independent claim, such as by 

declining to credit documents submitted in support thereof. See Qin Wen Zheng 

v. Gonzales, 500 F.3d 143, 147‒48 (2d Cir. 2007) (declining to credit a new document 

submitted in support of a motion to reopen because the petitioner had been found 

not credible in his prior testimony). 

Here, Cui initially applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”) in 2010, seeking such relief 

because he feared persecution by the Chinese Communist Party (“CCP”) over his 

Christian religious practices and the assistance he provided to a North Korean 

refugee. Citing inconsistencies in his evidence and implausible aspects of his 

story, the agency found Cui not credible and denied his application in 2016. Cui 
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filed a motion to reopen that application in 2020, asserting that changed country 

conditions and personal circumstances merited a different result. In support, Cui 

pointed to new evidence that he had joined and begun publicly supporting an antiCCP political party, which allegedly prompted authorities to interrogate Cui’s 

father in China over Cui’s dissident activities. The BIA, however, found that 

Cui’s supporting documents were undermined by “irregularities” and failed to 

rehabilitate his prior “history of lacking credibility.” Certified Admin. Record at 

6. On that basis, the agency declined take his new documents “at face value” and 

denied his motion to reopen. Id. Despite Cui’s various challenges, we see no 

reason to disturb the agency’s decision. 

As an initial matter, we reject Cui’s argument that the BIA erred in relying 

on his prior adverse credibility finding when it considered his new claim premised 

on his recent political dissent. To be sure, a petitioner’s new claim – based on 

facts that are “independent” of his earlier testimony – is “not necessarily 

foreclosed” merely because the agency previously found him not credible. Paul 

v. Gonzalez, 444 F.3d 148, 154 (2d Cir. 2006) (emphasis omitted). However, the 

agency may still consider the prior adverse credibility finding when it assesses the 
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evidence submitted in support of his new claim. See Qin Wen Zheng, 500 F.3d at 

148 (declining to credit a new document submitted in support of a motion to 

reopen because the petitioner had been found not credible in his prior testimony); 

Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (holding that “a single instance 

of false testimony may (if attributable to the petitioner) infect the balance of the 

[petitioner’s] uncorroborated or unauthenticated evidence”). In other words, the 

agency need not turn a blind eye to the fact that a petitioner was previously found 

not credible, even when the agency analyzes a new and independent claim 

asserted in a motion to reopen. Consequently, the agency did not err here when 

it declined to take at “face value” Cui’s new documents in light of his prior lack of 

credibility – an assessment that was compounded by irregularities in the new 

documents themselves. Certified Admin. Record at 6. 

For this reason, we also reject Cui’s arguments that the agency erred by 

failing to consider the evidence in support of his new claim and by failing to find 

that Cui established a case for relief. The agency properly considered (and 

dismissed) that evidence when it observed the irregularities in those documents – 

as further discussed below – and declined to credit them in light of Cui’s past lack 
7

of credibility. The agency acted well within its discretion when it declined to 

accept Cui’s new claims “at face value” and denied Cui’s motion. Id.

Next, Cui faults the agency for relying on “minor translation errors and 

typing mistakes” – the aforementioned irregularities – in his motion and 

supporting evidence. Pet’r Br. at 25. However, the errors in Cui’s documents 

bear on the authenticity of that evidence, which in turn gave the BIA sound 

reasons to discredit it. Some of the articles purporting to show Cui’s membership 

in the political party misspell the group’s name in the heading – errors not 

attributable to the translator, given that the original documents contain an Englishlanguage heading with the same misspelling. Further, the translated version of 

an article purportedly written by Cui (which announced his decision to join the 

dissident party) is dated inconsistently at its head and its close. Though this 

inconsistency could possibly be attributed to a translation error, the agency was 

not obliged to presume as much given Cui’s past credibility issues. See Qin Wen 

Zheng, 500 F.3d at 148; Siewe, 480 F.3d at 170. 

Finally, because Cui’s CAT claim was premised on the same facts and 

evidence as his claims for asylum and withholding of removal, the agency did not 
8

err in relying on the same reasoning – including its evaluation of credibility – to 

deny reopening to reapply for CAT protection. See Hong Fei Gao v. Sessions, 891 

F.3d 67, 76 (2d Cir. 2018) (“Where the same factual predicate underlies a 

petitioner’s claims for asylum, withholding of removal, and protection under the 

CAT, an adverse credibility determination forecloses all three forms of relief.”). 

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court