10-1997-ag BIA

Yan v. Holder A095 461 853

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 New

York, on the 21st 4 day of March, two thousand twelve.

5

6 PRESENT: ROSEMARY S. POOLER,

7 RICHARD C. WESLEY,

8 GERARD E. LYNCH,

9 Circuit Judges.

10 

11

12 TIAN H. YAN,

13 Petitioner,

14

15 -v.- 10-1997-ag

16 NAC

17 ERIC H. HOLDER, JR., UNITED STATES

18 ATTORNEY GENERAL,

19 Respondent.

20 

21

22 FOR PETITIONER: Peter S. Gordon, Forest Hills, N.Y.

23

24 FOR RESPONDENT: Tony West, Assistant Attorney General;

25 William C. Peachey, Assistant Director; and

26 Puneet Cheema, Trial Attorney; Office of

27 Immigration Litigation, Civil Division,

28 United States Department of Justice,

29 Washington, D.C.

30

31 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,

32 AND DECREED that the petition for review is DENIED.
2

1 Tian Hua Yan, a Chinese native and citizen, seeks review

2 of the BIA’s denial of his motion to reopen his removal

3 proceedings. We assume the parties’ familiarity with the

4 underlying facts and procedural history.

5 We review BIA decisions on motions to reopen for abuse of

6 discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

7 2006). Yan’s second renewed motion to reopen was number

8 barred and untimely because he filed it more than five years

9 after his final removal order. See 8 U.S.C.

10 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Nevertheless,

11 the 90-day timeliness requirement does not apply to motions to

12 reopen based on changed country conditions, so long as the new

13 evidence is material, was previously unavailable, and could

14 not have been discovered and presented at the prior hearing.

15 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii).

16 Changed country conditions are distinct from changed personal

17 circumstances. See, e.g., Wang v. BIA, 437 F.3d 270, 273-74

18 (2d Cir. 2006).

19 As a preliminary matter, we find Yan exhausted his claim

20 of deteriorating country conditions because he argued before

21 the BIA that China’s conditions had deteriorated before and

22 after the Olympics. Nevertheless, we conclude the BIA did not

23 abuse its discretion by rejecting Yan’s argument.
3

1 First, while Yan’s Falun Gong practice may have changed

2 his personal circumstances, it did not change the conditions

3 in China. Second, substantial evidence supports the BIA’s

4 findings that Falun Gong repression has been ongoing since

5 Yan’s 2003 hearing, so he could have, and should have, made

6 the argument then. While Yan suggests China increased

7 repression of Falun Gong practitioners in the lead up to the

8 Olympics, there is evidence that repression of Falun Gong

9 practitioners has been constant and ongoing since Yan’s 2003

10 hearing. Third, the BIA’s references to Yan’s submitted

11 evidence, “demonstrate that it has considered such evidence”

12 and rejected it. Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

13 Cir. 2006).

14 To conclude, it was not an abuse of discretion to find no

15 changed country conditions and to deny Yan’s motion as

16 untimely. We have considered and reject Yan’s other

17 arguments. Yan’s petition for review is DENIED.

18 FOR THE COURT:

19 Catherine O’Hagan Wolfe, Clerk