13-865 Lai v. Holder BIA A078 853 707 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 4 th** **day of November, two thousand fourteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **SUSAN L. CARNEY,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **Feng Qing Lai,** 13 Petitioner**,** 14 15 **v. 13-865** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Troy Nader Moslemi, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Daniel Goldman, Senior** 26 **Litigation Counsel; Erik R. Quick,** 27 **Trial Attorney, Office of Immigration** 28 **Litigation, United States Department** 29 **of Justice, Washington, D.C.** 30UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Feng Qing Lai, a native and citizen of the 5 People’s Republic of China, seeks review of a February 12, 6 2013, decision of the BIA denying his motion to reopen. In 7 re Feng Qing Lai , No. A078 853 707 (B.I.A. Feb. 12, 2013). 8 We assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 We review the denial of a motion to reopen for an abuse 11 of discretion, “mindful that motions to reopen ‘are 12 disfavored.’” Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 13 2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992))

. 14 An applicant may file a motion to reopen within 90 days of 15 the date on which a final administrative decision was 16 rendered in the proceeding sought to be reopened. See 8 17 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 18 However, the 90-day limitation period does not apply to a 19 motion to reopen that is “based on changed circumstances 20 arising in the country of nationality or in the country to 21 which deportation has been ordered, if such evidence is 22 material and was not available and could not have been 23
2discovered or presented at the previous hearing.” 8 C.F.R. 1 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 2 We review the BIA’s factual findings under the substantial 3 evidence standard. See Jian Hui Shao v. Mukasey,546 F.3d 4 138, 169 (2d Cir. 2008). 5 As the BIA determined, Lai’s adoption of Christianity 6 and church attendance in the United States constitute self7 induced changes in personal circumstances, which are 8 insufficient to excuse the untimeliness of his motion. See 9 Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006); 10 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). 11 In addition, the BIA’s determination that Lai failed to 12 establish a material change in conditions in China is 13 supported by substantial evidence. See Jian Hui Shao , 546 14 F.3d at 169. The BIA reasonably found that the evidence 15 showed conditions in China similar to those at the time of 16 Lai’s merits hearing. See 8 C.F.R. § 1003.2(c)(3)(ii); In 17

re S-Y-G- , 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In 18 determining whether evidence accompanying a motion to reopen 19 demonstrates a material change in country conditions that 20 would justify reopening, [the BIA] compares the evidence of 21

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3country conditions submitted with the motion to those that 1 existed at the time of the merits hearing below.”). 2 We have not yet addressed whether a change particular 3 to an alien can constitute a change in country conditions, 4 i.e. whether the Chinese government’s awareness of Lai’s 5 Christian faith is a change in conditions sufficient for 6 reopening. We do not reach the issue here because the BIA 7 did not abuse its discretion in declining to give weight to 8 Lai’s individualized documents from China, which were his 9 only evidence of the government’s awareness of his new 10 religious practice. Lai’s evidence included letters from 11 his sister and mother stating that Chinese authorities had 12 ordered that he return to China for punishment, a notice 13 purportedly from the Fuzhou City Luoxing Street Yanshan 14 Neighborhood Residents Committee, and a summons purportedly 15 from the Fuzhou City Public Security Bureau, demanding that 16 he cease disseminating religious materials from the United 17 States and return to China immediately for punishment. The 18 BIA reasonably concluded that those documents should be 19 afforded little weight because they were unauthenticated and 20 unspecific with respect to the punishment Lai would face. 21 See Xiao Ji Chenv. U.S. Dep’t of Justice, 471 F.3d 315, 342 22

4(2d Cir. 2006) (the weight afforded to the evidence lies 1 largely within the BIA’s discretion); see also Matter of 2

H-L-H- & Z-Y- Z- , 25 I. & N. Dec. 209, 215 (BIA 2010) (the 3 agency may give little weight to documents drafted by 4 interested witnesses not subject to cross examination), 5 rev’d on other grounds by Hui Lin Huang v. Holder , 677 F.3d 6 130 (2d Cir. 2012). 7 Accordingly, as Lai did not meet his burden to show 8 any change in conditions in China, the BIA did not abuse its 9 discretion in denying his motion to reopen as untimely. See 10 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2). 11 For the foregoing reasons, the petition for review is 12 DENIED. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19
FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23

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