     15-3962
     Zhang v. Sessions
                                                                                       BIA
                                                                               A077 511 020
                              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   31st day of March, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            REENA RAGGI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   QIAO CHAN ZHANG,
14            Petitioner,
15
16                       v.                                          15-3962
17                                                                   NAC
18   JEFFERSON B. SESSIONS, III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Scott Bratton, Margaret Wong &
24                                       Associates LLC, Cleveland, OH.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Linda S.
28                                       Wernery, Assistant Director;
29                                       Gregory M. Kelch, Trial Attorney,
30                                       Office of Immigration Litigation,
31                                       United States Department of Justice,
32                                       Washington, DC.
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 Qiao Chan Zhang, a native and citizen of the

6    People’s Republic of China, seeks review of a December 3, 2015,

7    decision of the BIA denying Zhang’s motion to reopen.       In re

8    Qiao Chan Zhang, No. A077 511 020 (B.I.A. Dec. 3, 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, mindful that motions to reopen ‘are

13   disfavored.[’]”   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

14   2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)).      An

15   alien may move to reopen proceedings once, no later than 90 days

16   after the final administrative decision was rendered.     8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     These

18   limitations may be excused if the motion to reopen is filed to

19   apply for asylum “based on changed country conditions arising

20   in the country of nationality or the country to which removal

21   has been ordered, if such evidence is material and was not
                                    2
1    available and would not have been discovered or presented at

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

3    8 C.F.R. § 1003.2(c)(3)(ii).       When the BIA considers evidence

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

5    review its factual findings under the substantial evidence

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

7         Zhang argues that the BIA abused its discretion in finding

8    no   material   change   in    China’s   treatment   of   Falun    Gong

9    practitioners    since   her   2001   merits   hearing.     As    Zhang

10   recognizes, the question is not whether conditions are poor,

11   but rather whether they have changed since her original merits

12   hearing.    8 U.S.C. § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24 I.

13   & N. Dec. 247, 253 (B.I.A. 2007) (explaining that the agency

14   “compare[s] the evidence of country conditions submitted with

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

16   hearing below”).    None of the trends Zhang identifies would

17   compel the BIA to find the material change necessary to excuse

18   the untimeliness of her motion.

19        Zhang notes that the State Department’s 2013 International

20   Religious Freedom (“IRF”) report states that the Chinese

21   government sent Falun Gong practitioners to 24 psychiatric
                                       3
1    hospitals for the criminally insane, an increase from prior

2    years.    But the 2001 IRF report painted a similarly dire picture

3    of hundreds of Falun Gong practitioners being sent to mental

4    hospitals.    Zhang reads the 2013 IRF report to state that the

5    Chinese government sends Falun Gong practitioners to labor

6    camps without giving them the opportunity to recant their

7    beliefs.     But the 2013 report simply states that members of

8    banned religious groups, including Falun Gong, have been told

9    to recant their beliefs, a matter also discussed in the 2001

10   report.      In   any    event,    the      2001   IRF    report   likewise

11   memorialized prison sentences for Falun Gong practitioners.

12   Zhang asserts that the Chinese government has ratcheted up

13   pressure on family members of Falun Gong practitioners, but the

14   2001   IRF   report     likewise   notes     the   Chinese      government’s

15   practice of leveraging family members and employers.               Finally,

16   Zhang points to a resolution of the United States House of

17   Representatives       about   organ       harvesting     from   Falun   Gong

18   detainees.    But that resolution was based on reports dating

19   back to Zhang’s hearing.       This record did not compel the BIA

20   to find a material change in country conditions excusing the


                                           4
1    time and number bar on Zhang’s motion to reopen.       8 U.S.C.

2    § 1252(b)(4)(B).

3        Zhang argues that the BIA ignored her evidence.      To the

4    contrary, the BIA reviewed Zhang’s documentary evidence in

5    detail, citing passages from several of the reports that reflect

6    ongoing (not increasing) concerns about China’s enforcement of

7    its Falun Gong ban.   Nothing more elaborate was required.   So

8    long as “the BIA ‘has given reasoned consideration to the

9    petition, and made adequate findings,’” it need not “‘expressly

10   parse or refute on the record’ each individual argument or piece

11   of evidence offered by the petitioner.”   Wang v. BIA, 437 F.3d

12   270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen v. U.S. Dep’t of

13   Justice, 434 F.3d 144, 160 n.13 (2d Cir. 2006)).

14       Zhang challenges the BIA’s decision to give little weight

15   to the village committee notice and letter from her mother she

16   submitted with her motion.   She raises the same complaint about

17   a letter from her grandmother, but concedes that this document

18   was not submitted with her second motion to reopen.     The BIA

19   reasoned that the committee notice was “unauthenticated,

20   handwritten, and unsigned by any official or individual,” and

21   that the mother’s letter “appears to be created for the purpose
                                    5
1    of litigation, is from an interested witness, and is not

2    supported by evidence” that government cadres rushed into

3    Zhang’s grandmother’s home in China.

4        “We generally defer to the agency’s determination of the

5    weight afforded to an alien’s documentary evidence.”             Y.C. v.

 6   Holder, 741 F.3d 324, 332 (2d Cir. 2013).             The BIA had the

 7   discretion    to   discount    the   village     committee   notice    and

 8   mother’s letter for the reasons cited.            See, e.g., Matter of

 9   H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 215 (BIA 2010) (giving

10   diminished weight to letters from relatives and acquaintances

11   because    they    were   interested     witnesses    not    subject   to

12   cross-examination and the letters were obtained for purposes

13   of litigation), rev’d on other grounds, Hui Lin Huang v. Holder,

14   677 F.3d 130 (2d Cir. 2012); cf. Cao He Lin v. U.S. Dep’t of

15   Justice, 428 F.3d 391, 405 (2d Cir. 2005) (holding “that the

16   IJ erred by rejecting the notarial birth certificate based on

17   Cao’s failure to authenticate it pursuant to ‘regulation’”).

18   Contrary to Zhang’s argument, as the trier of fact, the BIA could

19   discount     the   documents    without     an     underlying    adverse

20   credibility determination.           8 U.S.C. § 1158(b)(1)(B)(ii);

21   Shao, 546 F.3d at 169.
                                          6
1           The BIA did not consider the grandmother’s letter.   Zhang

2    referenced that letter in the table of contents accompanying

3    her motion to reopen, but did not append it to the motion or

4    cite it within the motion.    The grandmother’s letter bore the

5    same attributes as the mother’s letter, and so remand for the

6    BIA to consider it would be futile.     Cao He Lin, 428 F.3d at

7    402.

8           For the foregoing reasons, the petition for review is

9    DENIED.    Any pending request for oral argument in this petition

10   is DENIED in accordance with Federal Rule of Appellate Procedure

11   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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