         12-3266
         Liu v. Holder
                                                                                       BIA
                                                                               A200 026 204
                           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 12th day of September, two thousand thirteen.
 5
 6
 7       PRESENT:
 8                ROBERT A. KATZMANN,
 9                     Chief Judge,
10                PETER W. HALL,
11                CHRISTOPHER F. DRONEY,
12                     Circuit Judges.
13       _____________________________________
14
15       XING LIU,
16                       Petitioner,
17
18                       v.                                     12-3266
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _____________________________________
24
25       FOR PETITIONER:                Michael Brown, New York, New York.
26
27       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
28                                      Attorney General; Emily Anne
29                                      Radford, Assistant Director; Stephen
30                                      M. Elliott, Attorney, Office of
31                                      Immigration Litigation, United
32                                      States Department of Justice,
33                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Xing Liu, a native and citizen of the People’s Republic

 6   of China, seeks review of an August 1, 2012, decision of the

 7   BIA denying his motion to reopen.   In re Xing Liu, No. A200

 8   026 204 (B.I.A. Aug. 1, 2012).   We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

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

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

15   Doherty, 502 U.S. 314, 322-23 (1992)).     When the BIA

16   considers relevant evidence of country conditions in

17   evaluating a motion to reopen, we review the BIA’s factual

18   findings under the substantial evidence standard.     See Jian

19   Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

20       An alien may file a motion to reopen within 90 days of

21   the agency’s final administrative decision.    8 U.S.C.

22   § 1229a(c)(7)©; 8 C.F.R. § 1003.2(c)(2).    Although Liu’s



                                  2
 1   motion was indisputably untimely because it was filed more

 2   than three years after the agency’s final order of removal,

 3   see 8 U.S.C. § 1229a(c)(7)(C)(I), there are no time

 4   limitations for filing a motion to reopen if it is “based on

 5   changed country conditions arising in the country of

 6   nationality or the country to which removal has been

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

 8   and would not have been discovered or presented at the

 9   previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

10   also 8 C.F.R. § 1003.2(c)(3)(ii).

11       The BIA did not err in finding that Liu’s decision to

12   join the China Democracy Party (“CDP”) in the United States

13   constituted a change in his personal circumstances, rather

14   than a change in country conditions sufficient to excuse the

15   untimely filing of his motion to reopen.     See Yuen Jin v.

16   Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).    Nor did the BIA

17   err in finding that the evidence Liu submitted failed to

18   demonstrate a material change in country conditions because

19   that evidence demonstrated that the Chinese government had

20   continually banned the CDP and targeted its members since

21   the time of Liu’s last hearing and did not indicate that

22   conditions had worsened for similarly situated individuals.


                                  3
 1   See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian Hui Shao,

 2   546 F.3d at 169.

 3       As to Liu’s argument that he established changed

 4   country conditions in China based on letters stating that

 5   the Chinese government had become aware of his CDP

 6   activities in the United States, the BIA reasonably declined

 7   to credit the letters because they were unsworn and written

 8   by interested witnesses who were not subject to cross-

 9   examination.    See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

10   F.3d 315, 342 (2d Cir. 2006); see also In re H-L-H- & Z-Y-Z-

11   , 25 I. & N. Dec. 209, 215 (BIA 2010) (finding that unsworn

12   letters from the alien’s friends and family were

13   insufficient to provide substantial support for the alien’s

14   claims because they were interested witnesses not subject to

15   cross-examination (citations omitted)), overruled on other

16   grounds by Hui Lin Huang v. Holder, 677 F.3d 130, 133-38 (2d

17   Cir. 2012).    Accordingly, the BIA did not abuse its

18   discretion in denying Liu’s motion to reopen as untimely.

19   See 8 U.S.C. § 1229a(c)(7)©.

20

21

22



                                    4
1       For the foregoing reasons, the petition for review is

2   DENIED.   The pending motion for a stay of removal in this

3   petition is DISMISSED as moot.

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk




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