     14-1135
     Wei v. Lynch
                                                                                       BIA
                                                                               A073 612 783
                         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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   9th day of October, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO FENG WEI,
14            Petitioner,
15
16                  v.                                               14-1135
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Gary J. Yerman, New York, New York.
25
26   FOR RESPONDENT:                     Joyce R. Branda, Acting Attorney
27                                       General, Civil Division; Shelley R.
28                                       Goad, Assistant Director; Jennifer
29                                       P. Levings, Senior Litigation
30                                       Counsel, Office of Immigration
1                               Litigation, United States
2                               Department of Justice, Washington,
3                               D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Xiao Feng Wei, a native and citizen of the

10   People’s Republic of China, seeks review of a March 20, 2014,

11   decision of the BIA denying his untimely and number-barred

12   motion to reopen proceedings.       In re Xiao Feng Wei, No. A073

13   612 783 (B.I.A. Mar. 20, 2014).      We assume the parties’

14   familiarity with the underlying facts and procedural history

15   in this case.

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

17   of discretion, remaining mindful of the Supreme Court’s

18   admonition that such motions are “disfavored.”      Ali v.

19   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

20   Doherty, 502 U.S. 314, 322-23 (1992)); Kaur v. BIA, 413 F.3d

21   232, 233 (2d Cir. 2005) (per curiam); see also INS v. Abudu,

22   485 U.S. 94, 107 (1988).   When the BIA considers relevant

23   evidence of country conditions in evaluating a motion to reopen,
                                     2
1    we review the BIA’s factual findings under the substantial

2    evidence standard.   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

3    (2d Cir. 2008).

4         An alien seeking to reopen proceedings may file one motion

5    to reopen no later than 90 days after the date on which the final

6    administrative decision was rendered.     8 U.S.C.

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

8    Indisputably, Wei’s January 2014 motion was untimely and

9    number-barred, as it was his second motion to reopen, filed

10   nearly two decades after the final order of removal.     The time

11   and numerical limitations do not apply to a motion to reopen

12   if it is “based on changed circumstances arising in the country

13   of nationality or in the country to which deportation has been

14   ordered, if such evidence is material and was not available and

15   could not have been discovered or presented at the previous

16   hearing.”   8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

17   § 1229a(c)(7)(C)(ii).   However, substantial evidence supports

18   the BIA’s finding that Wei did not demonstrate changed

19   circumstances from the time of his 1996 removal order.   See Jian

20   Hui Shao, 546 F.3d at 169; Matter of S-Y-G-, 24 I&N Dec. 247,

21   253 (B.I.A. 2007).
                                    3
1        Wei moved to reopen proceedings based on his activism with

2    the Chinese Democracy Party (“CDP”) in the United States,

3    arguing that there had been a change in the Chinese government’s

4    treatment of democracy activists since 1996.       He did not,

5    however, submit any evidence regarding country conditions in

6    China in 1996.   Moreover, as the BIA noted, the country

7    conditions evidence he did submit, including the 2012 U.S. State

8    Department Human Rights and Congressional-Executive Commission

9    on China Annual reports, discusses the Chinese government’s

10   ongoing, continuous repression of democracy activists, not a

11   material change in treatment.       Wei therefore did not

12   demonstrate a change in country conditions.     See Jian Hui Shao,

13   546 F.3d at 142, 149.

14       Wei submitted with his motion to reopen a letter from his

15   sister in China which states that “people from the National

16   Security Bureau came to visit [her] home regarding [his] issue,”

17   told her that Wei had published anti-government articles, and

18   warned her that she needed to report to them if she “learned

19   anything about” Wei.    Wei argues that this letter demonstrates

20   changed country conditions in China.      However, the BIA did not

21   abuse its discretion in according the statement limited weight
                                     4
1    because it was unsworn and from an interested party.    See Xiao

2    Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

3    2006) (the weight afforded to an applicant’s evidence in

4    immigration proceedings lies largely within the discretion of

5    the agency).   Accordingly, the BIA reasonably determined that

6    Wei failed to establish materially changed conditions in China

7    and did not abuse its discretion in denying his untimely and

8    number-barred motion.    See 8 C.F.R. § 1003.2(c)(2),

9    (c)(3)(ii).

10       For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot.    Any pending request for oral argument

15   in this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O=Hagan Wolfe, Clerk




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