     15-1670
     Cui v. Lynch
                                                                                       BIA
                                                                               A099 934 507
                         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   23rd day of May, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            BARRINGTON D. PARKER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIANGLAN CUI,
14            Petitioner,
15
16                  v.                                               15-1670
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Guang Jun Gao, Esq., Flushing, New
24                                       York.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Paul
28                                       Fiorino, Senior Litigation Counsel;
29                                       Deitz P. Lefort, Trial Attorney;
30                                       Office of Immigration Litigation,
31                                       United 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 is

4    DENIED.

5        Petitioner Xianglan Cui, a native and citizen of the

6    People’s Republic of China, seeks review of a May 4, 2015,

7    decision of the BIA denying her untimely motion to reopen.         In

8    re Xianglan Cui, No. A099 934 507 (B.I.A. May 4, 2015).            We

9    assume the parties’ familiarity with the underlying facts and

10   procedural history in this case.

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

12   of discretion.”     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

13   2006) (per curiam).      When the BIA considers relevant evidence

14   of country conditions in evaluating a motion to reopen, we

15   review    the   BIA’s   factual   findings   under   the   substantial

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

17   (2d Cir. 2008).

18       It is undisputed that Cui’s motion to reopen was untimely.

19   Her February 2015 motion was filed nearly two years after the

20   final administrative order of removal was issued in May 2013.

21   8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing

22   motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same).           This time

                                        2
1    limitation may be excused if the motion “is based on changed

2    country conditions arising in the country of nationality or the

3    country to which removal has been ordered, if such evidence is

4    material and was not available and would not have been

5    discovered or presented at the previous proceeding,” 8 U.S.C.

6    § 1229a(c)(7)(C)(ii), but the BIA reasonably concluded that Cui

7    failed to establish changed           conditions for pro-democracy

8    activists in China.

9          Substantial evidence supports the BIA’s determination that

10   the     Chinese    government’s         treatment   of      political

11   dissidents—which      included        harassment,   arrests,      and

12   detention—was a continuation of conditions existing at the time

13   of Cui’s 2010 hearing before the IJ.        See In re S-Y-G-, 24 I.

14   & N. Dec. 247, 253 (BIA 2007).        While Cui’s evidence includes

15   specific reports of arrests of 50 people during a crackdown on

16   protest activity, the same report from Amnesty International

17   refers to a continuation of persecution.        The U.S. Department

18   of State’s 2012 Country Report on Human Rights Practices further

19   supports the BIA’s conclusion that conditions had not changed;

20   it reported that pro-democracy groups “remained banned, and the

21   government continued to monitor, detain, and imprison current

22   and former [Chinese Democracy Party] members.”           The 2011 and

                                       3
1    2012 reports of the Congressional-Executive Commission on China

2    similarly report that detention, harassment, and intolerance

3    “remained commonplace.”         Given this record evidence the BIA

4    reasonably concluded that there had been no material change in

5    the treatment of pro-democracy activists in China.                 See 8

6    U.S.C. § 1229a(c)(7)(C)(ii).

7        To the extent that Cui alleged a change particular to

8    herself—the Chinese government’s awareness of her political

9    activity in the United States—the BIA did not abuse its

10   discretion in declining to give weight to her evidence.               See

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

12   Cir. 2006) (stating that weight given corroborating evidence

13   lies largely with discretion of agency).                 Moreover, the

14   reliability of the letters was undermined by the underlying

15   adverse credibility determination.              See Qin Wen Zheng v.

16   Gonzales, 500 F.3d 143, 146-48 (2d Cir. 2007) (upholding

17   agency’s refusal to credit applicant’s individualized evidence

18   supporting   motion   to    reopen      given    adverse    credibility

19   determination in underlying proceedings).

20       To the extent Cui now challenges the immigration judge’s

21   adverse credibility determination in her brief, it is not

22   properly   before   us;    we    previously     denied     her   petition

                                         4
1    challenging that decision.   See Johnson v. Holder, 564 F.3d 95,

2    99 (2d Cir. 2009).      Because a showing of changed country

3    conditions is a prerequisite to reopening, the BIA did not abuse

4    its discretion in denying the motion.   We decline to reach the

5    BIA’s alternative ruling that Cui failed to demonstrate her

6    prima facie eligibility for asylum.   See INS v. Bagamasbad, 429

7    U.S. 24, 25 (1976) (per curiam).

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk




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