         11-1718-ag
         Pui v. Holder
                                                                                       BIA
                                                                               A073 565 085
                          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
 4       New York, on the 21st day of February, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       YAU KUEN PUI,
14                Petitioner,
15
16                       v.                                     11-1718-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, Youman, Madeo &
24                                     Fasano, LLP, New York, NY.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Douglas E. Ginsberg,
28                                     Assistant Director; Theo Nickerson,
29                                     Trial Attorney, Office of
 1                          Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, 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

 8   is DENIED.

 9       Yau Kuen Pui, a native and citizen of China, seeks

10   review of a March 29, 2011 order of the BIA denying her

11   second motion to reopen and her motion to reconsider its

12   denial of her first motion to reopen.     In re Yau Kuen Pui,

13   No. A073 565 085 (BIA Mar. 29, 2011).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16       “We review the BIA’s denial of a motion to reopen or

17   reconsider for an abuse of discretion.”     Ri Kai Lin v.

18   Bureau of Citizenship & Immigration Servs., 514 F.3d 251,

19   253–54 (2d Cir. 2008) (per curiam).     When the agency

20   considers relevant evidence of country conditions in

21   evaluating a motion to reopen, we review factual findings

22   under the substantial evidence standard.     See Jian Hui Shao

23   v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

24


                                  2
 1       An alien may move to reopen her case, but she must

 2   generally do so within 90 days of the entry of the final

 3   order of deportation in the underlying proceeding.      8 C.F.R.

 4   § 1003.2(c)(2); see also 8 U.S.C. § 1229a(c)(7)(C)(i).        A

 5   motion that does not comply with this time limitation can be

 6   brought if the alien establishes both “changed circumstances

 7   arising in the country of nationality or in the country to

 8   which deportation has been ordered,” 8 C.F.R.

 9   § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii),

10   and prima facie eligibility for relief, see Poradisova v.

11   Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).     Pui’s 2010 motion

12   to reopen was untimely because the BIA’s final order in the

13   underlying proceeding was entered in 2002.    She was

14   therefore required to establish that conditions in China had

15   changed since her last merits hearing.

16       Pui concedes that the BIA correctly concluded that she

17   had shown a change in personal circumstances, which alone is

18   insufficient to excuse her untimely motion.     See Li Yong

19   Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130–31 (2d

20   Cir. 2005) (per curiam).   Moreover, the BIA acted well

21   within its discretion in finding that Pui failed to

22   establish a material change in country conditions in China


                                   3
 1   concerning the oppression of political dissidents and

 2   unregistered Christian churches.   Pui cites to evidence

 3   indicating that the Chinese government intensified its

 4   oppression of political dissidents and unregistered

 5   religious groups in certain regions of the country in the

 6   period leading up to and during the 2008 Summer Olympics.

 7   However, that intensification was not material to her motion

 8   to reopen, which was filed well after the Olympics had

 9   concluded.   Cf. Jian Hui Shao, 546 F.3d at 169.

10       Although Pui cites to news articles and congressional

11   testimony indicating a general increased “crackdown” on

12   political and religious groups in China, the BIA did not

13   abuse its discretion in finding that she failed to explain

14   how the Chinese government’s treatment of such groups

15   materially changed since the time of her last hearing in

16   1998.   See In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007).

17       Moreover, while Pui relied on a 2010 news article

18   quoting a U.S. State Department official’s opinion that

19   “pressure on civil society groups challenging Beijing

20   government policies is on the rise” and the situation was “a

21   real crackdown,” the BIA was not required to expressly

22   address this piece of evidence where she failed to compare


                                   4
 1   the current conditions in China to the conditions in 1998,

 2   or give the official’s generalized opinion much weight where

 3   she failed to substantiate her claim with any other

 4   evidence. See Jian Hui Shao, 546 F.3d at 169; Xiao Ji Chen

 5   v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).

 6   Furthermore, substantial evidence in the record supports the

 7   BIA’s conclusion that no material change has occurred in

 8   China’s policy toward unregistered churches.   Consequently,

 9   we will not disturb the agency’s finding.

10       Finally, Pui challenges the BIA’s denial of her motion

11   to reconsider her first motion to reopen insofar as the

12   agency ruled that her reliance on Shi Jie Ge v. Holder, 588

13   F.3d 90, 96 (2d Cir. 2009), and other cases was misplaced.

14   In her appellate brief, she asserts that, like the asylum

15   applicant in Shi Jie Ge, she can “demonstrate a well-founded

16   fear of future persecution by demonstrating that [her]

17   involvement in a banned organization [, i.e., the China

18   Democracy Party (“CDP”),] may become known after [her]

19   return.”   Shi Jie Ge, 588 F.3d at 96 (emphasis in original).

20   However, because Pui failed to demonstrate changed country

21   conditions, a prerequisite to consideration of the merits of

22   her claim, we need not address whether the agency’s

23   conclusion that no evidence had been submitted demonstrating
                                   5
 1   that the Chinese authorities were actually aware of her CDP

 2   membership was error in light of Shi Jie Ge.

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

 6   is VACATED.    Any pending request for oral argument in this

 7   petition is DENIED in accordance with Federal Rule of

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

 9   34.1(b).

10                                FOR THE COURT:
11                                Catherine O’Hagan Wolfe, Clerk
12
13




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