12-2917

Yang v. Holder

BIA

A094 925 425

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 13th day of January, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

JON O. NEWMAN,

CHRISTOPHER F. DRONEY,

Circuit Judges.

_____________________________________

SHAI QUING YANG, AKA SAI QING YANG,

Petitioner, 

 v. 12-2917

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_____________________________________

FOR PETITIONER: Adedayo O. Idowu, Law Offices of

Adedayo O. Idowu, PLLC, New York,

NY.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Douglas E.

Ginsburg, Assistant Director, Deitz
P. Lefort, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

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 Shai Quing Yang, a native and citizen of

China, seeks review of a June 25, 2012 decision of the BIA

denying her motion to reopen her removal proceedings. In re

Shai Quing Yang, No. A094 925 425 (B.I.A. June 25, 2012). 

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

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

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

(2d Cir. 2006) (per curiam). An alien seeking to reopen

proceedings is required to file a motion to reopen no later

than 90 days after the date on which the final

administrative decision. See 8 U.S.C. § 1229a(c)(7)(C); 

8 C.F.R. § 1003.2(c)(2). There is no dispute that Yang’s

motion to reopen, filed in November 2011, was untimely

because the BIA issued a final order of removal in March

2011.

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Yang contends, however, that her recent membership in

the China Democracy Party (“CDP”), and the Chinese

government’s awareness of her political activities in the 

United States, constitute materially changed conditions

excusing her untimely motion. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). 

The BIA properly determined that Yang's political

activities constituted changed personal circumstances, which

are insufficient to excuse the untimely filing of her motion

to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74

(2d Cir. 2006) (making clear that the limitations on motions

to reopen may not be suspended because of a “self-induced

change in personal circumstances” that is “entirely of [the

applicant’s] own making after being ordered to leave the

United States”); see also Yuen Jin v. Mukasey, 538 F.3d 143,

155 (2d Cir. 2008) (concluding that the system does not

permit aliens who have been ordered removed “to disregard

[those] orders and remain in the United States long enough

to change their personal circumstances (e.g., by having

children or practicing a persecuted religion) and initiate

new proceedings via a new asylum application”). 

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Moreover, the BIA reasonably found that Yang's evidence

does not compel the conclusion that the treatment of

political dissidents in China has worsened since 2010. See

8 U.S.C. §1252(b)(4)(B) (the BIA’s factual findings are

“conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”). Rather, the

evidence supports the BIA’s finding that these conditions

existed at the time of the merits hearing. See In re

S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In

determining whether evidence accompanying a motion to reopen

demonstrates a material change in country conditions that

would justify reopening, [the BIA] compares the evidence of

country conditions submitted with the motion to those that

existed at the time of the merits hearing below.”). 

As to Yang’s argument that the BIA’s treatment of the

letters from her father and the Public Security Bureau was

erroneous, the weight accorded to evidence lies largely

within the agency’s discretion, see Xiao Ji Chen v. United

States Dep't of Justice, 471 F.3d 315, 342 (2d Cir. 2006),

and its determination that an unauthenticated letter from a

family member should be accorded little weight was not an

abuse of its discretion. See Qin Wen Zheng v. Gonzales, 500

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F.3d 143, 149 (2d Cir. 2007) (finding that the BIA did not

abuse its discretion in declining to credit a document

supported only by a spouse’s affidavit where the IJ had

previously questioned the applicant’s credibility); Matter

of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

(giving diminished evidentiary weight to letters from

interested witnesses not subject to cross examination),

rev'd on other grounds by Hui Lin Huang v. Holder, 677 F.3d

130 (2d Cir. 2012).

 Likewise, the BIA’s treatment of the unauthenticated

notice from the Public Security Bureau was not improper. 

Although the agency may err in rejecting a document solely

based on the alien’s failure to authenticate it according to

the relevant regulations, see Cao He Lin v. U.S. Dep’t of

Justice, 428 F.3d 391, 403 (2d Cir. 2005), it does not err

where, as here, its decision to reject documentary evidence

is based in part on the fact that a document was not

authenticated by any means, see Qin Wen Zheng, 500 F.3d at

146-49; Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. at 214-15

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

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this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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