09 -31 61 -ag

Dong v. Holder BIA A095 369 389 

### UNITED STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RU L INGS 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 FEDERA L 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 1 0 and procedural history in this case. This Court reviews the 1 1 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 1 3 curiam). 1 4 There is no dispute that Dong’s December 2008 motion to 1 5 reopen was untimely because the agency issued a final order 1 6 of removal in May of 2004. See 8 C.F.R. § 1003.2(c)(2). 1 7 However, there is no temporal or numerical limitation for 1 8 filing a motion to reopen if it is “based on changed 1 9 circumstances arising in the country of nationality or in 2 0 the country to which deportation has been ordered, if such 2 1 evidence is material and was not available and could not 2 2 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 1 0 Cir. 2006) (citing Asociacion de Compositores y Editores de 11 Musica Latino Americana v. Copyright Royalty Tribunal, 854 1 2 F.2d 10, 13 (2d Cir. 1988)). The BIA’s finding in this 1 3 respect was particularly appropriate given its prior adverse 1 4 credibility determination. Qin Wen Zheng v. Gonzales , 500 1 5 F.3d 143, 147-48 (2d Cir. 2007). 1 6 Second, the BIA reasonably concluded that Dong failed 1 7 to present evidence establishing a material change in the 1 8 Chinese government’s treatment of political dissidents. 1 9 While Dong provided a notice from the Lao Feng Village 2 0 Committee indicating that government officials were aware of 2 1 his political activities and asylum application in the 2 2 United States, such evidence is indicative of a change in4 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 1 0 oral argument in this petition is DENIED in accordance with 1 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 2 Circuit Local Rule 34.1(b). 1 3 FOR THE COURT: 1 4 Catherine O’Hagan Wolfe, Clerk 15 16