         12-4266
         Kong v. Holder
                                                                                       BIA
                                                                               A093 409 907
                           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,
 4       on the 5th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       YANG KONG,
14                Petitioner,
15
16                        v.                                    12-4266
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Charles Christophe, Christophe Law
24                                     Group, PC, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; David V. Bernal,
28                                     Assistant Director, Margaret Kuehne
29                                     Taylor, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     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 Yang Kong, a native and citizen of China,

6    seeks review of an October 3, 2012 decision of the BIA

7    denying his motion to reopen his removal proceedings.     In re

8    Yang Kong, No. A093 409 907 (B.I.A. Oct. 3, 2012).   We

9    assume the parties’ familiarity with the underlying facts

10   and procedural history in this 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) (per curiam).   An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision.   See 8 U.S.C. § 1229a(c)(7)(C);

17   8 C.F.R. § 1003.2(c)(2).   There is no dispute that Kong’s

18   motion to reopen, filed in March 2012, was untimely because

19   the BIA issued a final order of removal in April 2010.

20       Kong contends, however, that his conversion to

21   Christianity in the United States, his recent membership in

22   the Chinese Democratic Party (“CDP”), and the Chinese


                                    2
1    government’s awareness of his political activities in the

2    United States, constitute materially changed conditions

3    excusing his untimely motion.       See 8 U.S.C.

4    § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3).

5        As to Kong's CDP claim, the BIA did not abuse its

6    discretion in finding that he failed to demonstrate his

7    prima facie eligibility for relief because Kong failed to

8    support or otherwise corroborate his CDP membership with

9    credible evidence.   See Hongsheng Leng v. Mukasey, 528 F.3d

10   135, 142-43 (2d Cir. 2008); see also       Jian Hui Shao v.

11   Mukasey, 546 F.3d 138, 168 (2d Cir. 2008) (recognizing that

12   an alien’s “ability to secure reopening depends on a

13   demonstration of prima facie eligibility for [relief], which

14   means []he must show a realistic chance that []he will be

15   able to obtain such relief”) (internal quotation marks and

16   citation omitted).

17       Contrary to Kong’s contention, the BIA did not abuse

18   its discretion in finding the unsworn letter from his wife

19   to be unreliable, given the agency’s prior determination

20   that Kong was not a credible witness.       See Qin Wen Zheng v.

21   Gonzales, 500 F.3d 143, 147-49 (2d Cir. 2007) (concluding

22   that an adverse credibility finding provided reasonable


                                     3
1    basis for rejecting the authenticity of an unauthenticated

2    document submitted by the party).   While Kong is correct

3    that the BIA did not specifically address his affidavit,

4    this Court does “not demand that the BIA expressly parse or

5    refute on the record each individual argument or piece of

6    evidence offered by the petitioner,” Jian Hui Shao, 546 F.3d

7    at 169 (internal quotation marks and citation omitted), and

8    we presume that the agency “has taken into account all of

9    the evidence before [it], unless the record compellingly

10   suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice,

11   471 F.3d 315, 338 n. 17 (2d Cir. 2006).   Here, nothing

12   suggests that the agency did not consider the affidavit and,

13   in light of the adverse credibility finding, the BIA did not

14   act unreasonably by declining to rely on it.   See Qin Wen

15   Zheng, 500 F.3d at 147-48.

16       With respect to Kong’s Christianity claim, none of

17   Kong’s evidence addressed China’s treatment of Christians at

18   the time of his merits hearing.   This was fatal to his

19   motion.   See In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.

20   2007) (“In determining whether evidence accompanying a

21   motion to reopen demonstrates a material change in country

22   conditions that would justify reopening, [the BIA]


                                   4
1    compare[s] the evidence of country conditions submitted with

2    the motion to those that existed at the time of the merits

3    hearing below.”).

4        While Kong contends that the newspaper articles he

5    submitted demonstrated worsening conditions for Christians

6    in China, the general statements in these articles that

7    Chinese authorities had engaged in a “crackdown” do not

8    reflect the conditions that existed in 2008, or provide

9    material evidence of a change in country conditions.     See

10   8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

11   Finally, nothing in the United States Department of State

12   report compels the conclusion that the treatment of

13   Christians in China has worsened since 2008.   See 8 U.S.C.

14   §1252(b)(4)(B) (the BIA’s factual findings are “conclusive

15   unless any reasonable adjudicator would be compelled to

16   conclude to the contrary”).

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with

23   Federal Rule of Appellate Procedure 34(a)(2), and Second
                                   5
1   Circuit Local Rule 34.1(b).

2                                 FOR THE COURT:
3                                 Catherine O’Hagan Wolfe, Clerk




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