10-2397-ag

Xia v. Holder 

BIA

A098 228 356

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 1st day of September, two thousand eleven.

PRESENT:

JON O. NEWMAN,

JOSÉ A. CABRANES,

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

_____________________________________

XIUFEN XIA,

Petitioner, 

 v. 10-2397-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: David X. Feng, New York, New York

FOR RESPONDENT: Tony West, Asst. Atty. General; Carl

H. McIntyre, Jr., Asst. Director; Kate

D. Balaban, Trial Atty., Office of

Immigration Litigation, Civil Division, United States Department of

Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

Xiufen Xia, a native and citizen of the People’s Republic

of China, seeks review of a May 18, 2010, order of the BIA

denying her motion to reopen. In re Xiufen Xia, No. A098 228

356 (B.I.A. May 18, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

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

abuse of discretion, mindful of the Supreme Court’s admonition

that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314,

322-23 (1992)). There is no dispute that Xia’s October 2009

motion to reopen was untimely because her administrative order

of removal became final in 2006. See 8 U.S.C. §

1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although Xia

contends that the time and number limitations do not apply to

her motion to reopen as it is “based on changed circumstances

arising in the country of nationality,” 8 U.S.C. §

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

are unavailing.

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Xia asserts that she demonstrated changed conditions

because she joined the Party for Freedom and Democracy in

China (“PFDC”) after being ordered removed from the United

States, and Chinese officials contacted her mother-in-law

about her activities. However, as the BIA found, Xia's

membership in the PFDC was a change in her personal

circumstances, not a change in country conditions. See Yuen

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

supports the BIA’s determination that Xia has not established

changed conditions “arising in” China, as the evidence of

conditions in China showed only a continuation of repression

of political dissidents. See id.; Wei Guang Wang v. BIA, 437

F.3d 270, 273-74 (2d Cir. 2006). Therefore, we find no abuse

of discretion in the BIA's denial of Xia's motion to reopen. 

See 8 C.F.R. § 1003.2(c)(3)(ii); Yuen Jin, 538 F.3d at 155. 

Because Xia did not establish an exception to the filing

deadline, we do not reach her argument that she established

her prima facie eligibility for asylum. 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot. Any

pending request for oral argument in this petition is DENIED

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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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