09-3161-ag

Dong v. Holder

BIA

A095 369 389

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 16 day of March, two thousand ten. th

5

6 PRESENT:

7 JOSEPH M. McLAUGHLIN,

8 ROBERT A. KATZMANN,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _________________________________________

12

13 XU QING DONG,

14 Petitioner, 

15

16 v. 09-3161-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Michael Brown, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General, Civil Division; Greg D.

27 Mack, Senior Litigation Counsel,

28 Office of Immigration Litigation;

29 Lisa M. Damiano, Trial Attorney,

30 Office of Immigration Litigation,

31 United States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED, that the petition for review

4 is DENIED. 

5 Petitioner Xu Qing Dong, a native and citizen of

6 People’s Republic of China, seeks review of a July 14, 2009,

7 order of the BIA denying his motion to reopen. In re Xu

8 Qing Dong, No. A095 369 389 (B.I.A. July 14, 2009). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history in this case. This Court reviews the

11 BIA’s denial of a motion to reopen for abuse of discretion. 

12 See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per

13 curiam). 

14 There is no dispute that Dong’s December 2008 motion to

15 reopen was untimely because the agency issued a final order

16 of removal in May of 2004. See 8 C.F.R. § 1003.2(c)(2). 

17 However, there is no temporal or numerical limitation for

18 filing a motion to reopen if it is “based on changed

19 circumstances arising in the country of nationality or in

20 the country to which deportation has been ordered, if such

21 evidence is material and was not available and could not

22 have been discovered or presented at the previous hearing.” 
3

1 8 C.F.R. 

2 § 1003.2(c)(3)(ii). 

3 Here, the BIA did not abuse its discretion in finding

4 that Dong failed to establish changed country conditions

5 excepting his motion to reopen from the applicable time

6 limitations. Id. First, the BIA reasonably declined to

7 give weight to the evidence Dong submitted purportedly

8 showing his political involvement in the United States. See

9 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

10 Cir. 2006) (citing Asociacion de Compositores y Editores de

11 Musica Latino Americana v. Copyright Royalty Tribunal, 854

12 F.2d 10, 13 (2d Cir. 1988)). The BIA’s finding in this

13 respect was particularly appropriate given its prior adverse

14 credibility determination. Qin Wen Zheng v. Gonzales, 500

15 F.3d 143, 147-48 (2d Cir. 2007). 

16 Second, the BIA reasonably concluded that Dong failed

17 to present evidence establishing a material change in the

18 Chinese government’s treatment of political dissidents. 

19 While Dong provided a notice from the Lao Feng Village

20 Committee indicating that government officials were aware of

21 his political activities and asylum application in the

22 United States, such evidence is indicative of a change in
4

1 personal circumstances, not changed country conditions that

2 would warrant reopening his removal proceedings. See

3 8 C.F.R. § 1003.2(c)(3)(ii); see also Wang v. BIA, 437 F.3d

4 270, 273-74 (2d Cir. 2006). 

5 For the foregoing reasons, the petition for review is

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

7 removal that the Court previously granted in this petition

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

9 this petition is DISMISSED as moot. Any pending request for

10 oral argument in this petition is DENIED in accordance with

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

12 Circuit Local Rule 34.1(b).

13 FOR THE COURT: 

14 Catherine O’Hagan Wolfe, Clerk

15

16