13-865

Lai v. Holder

BIA

A078 853 707

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 4th 4 day of November, two thousand fourteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 SUSAN L. CARNEY,

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges.

11 _____________________________________

12

13 Feng Qing Lai,

14 Petitioner, 

15

16 v. 13-865

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Troy Nader Moslemi, New York, NY.

24 

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Daniel Goldman, Senior

27 Litigation Counsel; Erik R. Quick,

28 Trial Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, Washington, D.C.
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 Feng Qing Lai, a native and citizen of the

6 People’s Republic of China, seeks review of a February 12,

7 2013, decision of the BIA denying his motion to reopen. In

8 re Feng Qing Lai, No. A078 853 707 (B.I.A. Feb. 12, 2013). 

9 We assume the parties’ familiarity with the underlying facts

10 and procedural history in this case.

11 We review the denial of a motion to reopen for an abuse

12 of discretion, “mindful that motions to reopen ‘are

13 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

14 2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). 

15 An applicant may file a motion to reopen within 90 days of

16 the date on which a final administrative decision was

17 rendered in the proceeding sought to be reopened. See 8

18 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 

19 However, the 90-day limitation period does not apply to a

20 motion to reopen that is “based on changed circumstances

21 arising in the country of nationality or in the country to

22 which deportation has been ordered, if such evidence is

23 material and was not available and could not have been

2
1 discovered or presented at the previous hearing.” 8 C.F.R.

2 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 

3 We review the BIA’s factual findings under the substantial

4 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d

5 138, 169 (2d Cir. 2008).

6 As the BIA determined, Lai’s adoption of Christianity

7 and church attendance in the United States constitute self8 induced changes in personal circumstances, which are

9 insufficient to excuse the untimeliness of his motion. See

10 Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006);

11 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). 

12 In addition, the BIA’s determination that Lai failed to

13 establish a material change in conditions in China is

14 supported by substantial evidence. See Jian Hui Shao, 546

15 F.3d at 169. The BIA reasonably found that the evidence

16 showed conditions in China similar to those at the time of

17 Lai’s merits hearing. See 8 C.F.R. § 1003.2(c)(3)(ii); In

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

19 determining whether evidence accompanying a motion to reopen

20 demonstrates a material change in country conditions that

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

22

3
1 country conditions submitted with the motion to those that

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

3 We have not yet addressed whether a change particular

4 to an alien can constitute a change in country conditions,

5 i.e. whether the Chinese government’s awareness of Lai’s

6 Christian faith is a change in conditions sufficient for

7 reopening. We do not reach the issue here because the BIA

8 did not abuse its discretion in declining to give weight to

9 Lai’s individualized documents from China, which were his

10 only evidence of the government’s awareness of his new

11 religious practice. Lai’s evidence included letters from

12 his sister and mother stating that Chinese authorities had

13 ordered that he return to China for punishment, a notice

14 purportedly from the Fuzhou City Luoxing Street Yanshan

15 Neighborhood Residents Committee, and a summons purportedly

16 from the Fuzhou City Public Security Bureau, demanding that

17 he cease disseminating religious materials from the United

18 States and return to China immediately for punishment. The

19 BIA reasonably concluded that those documents should be

20 afforded little weight because they were unauthenticated and

21 unspecific with respect to the punishment Lai would face. 

22 See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342

4
1 (2d Cir. 2006) (the weight afforded to the evidence lies

2 largely within the BIA’s discretion); see also Matter of

3 H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (the

4 agency may give little weight to documents drafted by

5 interested witnesses not subject to cross examination),

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

7 130 (2d Cir. 2012). 

8 Accordingly, as Lai did not meet his burden to show

9 any change in conditions in China, the BIA did not abuse its

10 discretion in denying his motion to reopen as untimely. See

11 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2).

12 For the foregoing reasons, the petition for review is

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

14 removal that the Court previously granted in this petition

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

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

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

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