11-3914-ag

Gao v. Holder

BIA

A077 957 470

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 20th 4 day of July, two thousand twelve.

5

6 PRESENT:

7 JOSEPH M. MCLAUGHLIN,

8 JOSÉ A. CABRANES,

9 BARRINGTON D. PARKER,

10 Circuit Judges. 

11 _____________________________________

12

13 Hong Ping Gao,

14 Petitioner, 15

16 v. 11-3914-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent. 21 _____________________________________ 22

23

24 FOR PETITIONER: Peter D. Lobel, New York, NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; John S. Hogan, Senior

28 Litigation Counsel; Laura M.L. Maroldy,

29 Trial Attorney, Office of Immigration

30 Litigation, Civil Division, United States

31 Department 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 Hong Ping Gao, a native and citizen of the People’s

6 Republic of China, seeks review of an August 31, 2011, order

7 of the BIA denying her motion to reopen her removal

8 proceedings. In re Hong Ping Gao, No. A077 957 470 (B.I.A.

9 Aug. 31, 2011). We assume the parties’ familiarity with the

10 underlying facts and procedural history of the case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). Here, the BIA did not abuse its discretion

14 by denying Gao’s motion to reopen as untimely as she filed

15 it nearly seven years after her final order of removal. See

16 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

17 Although the time limits on motions to reopen may be

18 excused when the movant demonstrates changed country

19 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA

20 reasonably concluded that Gao did not demonstrate changed

21 conditions in this case.

22 We defer to the BIA’s general conclusion that the

23 ongoing persecution of Christians across China did not

24 change significantly between 2002 and 2010. See Shao v.

2
1 Mukasey, 546 F.3d 138, 171 (2d Cir. 2008) (“We do not

2 ourselves attempt to resolve conflicts in record evidence, a

3 task largely within the discretion of the agency.”); see

4 also Matter of S-Y-G-, 24 I. & N. Dec. 247, 257 (BIA 2007)

5 (explaining that an “incremental or incidental” change in a

6 country’s policies does not constitute changed country

7 conditions for purposes of motions to reopen).

8 The BIA’s decision noted that the repression of

9 Christians in China varies by locality. Gao contends that

10 the BIA abused its discretion in failing to consider the

11 letter she submitted from a friend who was arrested for

12 being a Christian in Gao’s hometown. This argument is

13 unavailing.

14 While the BIA did not expressly consider the letter, it

15 was not required to “expressly parse or refute on the record

16 each individual argument or piece of evidence offered by the

17 petitioner.” Shao, 546 F.3d at 169 (quotation marks

18 omitted). Accordingly, we presume that the BIA considered

19 the letter and gave it the appropriate weight. See Chen v.

20 U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006)

21 (noting that this Court will “presume” that the agency “has

22 taken into account all of the evidence before [it], unless

23 the record compellingly suggests otherwise”). The letter

24 did not establish changed conditions in Gao’s hometown

25 because there was no evidence about conditions in that

3
1 hometown at the time of her 2002 merits hearing. See Matter

2 of S-Y-G-, 24 I. & N. Dec. at 253 (“In determining whether

3 evidence accompanying a motion to reopen demonstrates a

4 material change in country conditions that would justify

5 reopening, we compare the evidence of country conditions

6 submitted with the motion to those that existed at the time

7 of the merits hearing below.”); Moosa v. Holder, 644 F.3d

8 380, 386–87 (7th Cir. 2011). 

9 For the foregoing reasons, the petition for review is

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

11 removal that the Court previously granted in this petition

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

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

14 oral argument in this petition is DENIED in accordance with

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

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

4