     09-2519-ag
     Li v. Holder


1                            UNITED STATES COURT OF APPEALS
2                                FOR THE SECOND CIRCUIT

3                                    SUMMARY ORDER

 4   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 5   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
 6   BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE
 7   32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
 8   PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
 9   THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
10   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


11        At a stated term of the United States Court of Appeals for
12   the Second Circuit, held at the Daniel Patrick Moynihan United
13   States Courthouse, 500 Pearl Street, in the City of New York, on
14   the 29th day of July, two thousand ten.
15
16   PRESENT:       DENNIS JACOBS,
17                        Chief Judge,
18                  RICHARD C. WESLEY,
19                  DENNY CHIN,
20                        Circuit Judges.
21
22   - - - - - - - - - - - - - - - - - - - - -
23
24   ZU JIE LI, also known as ZU HUE LI,
25
26                                       Petitioner,
27
28                      v.                                       09-2519-ag
29
30
31   ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
32
33
34                                       Respondent.
35
36   - - - - - - - - - - - - - - - - - - - - -
37
38         FOR PETITIONER:               Zu Jie Li, pro se,
39                                       Brooklyn, N.Y.
40
41         FOR RESPONDENT:               Tony West, Assistant Attorney
 1                                   General, Greg D. Mack, Senior
 2                                   Litigation Counsel, Micheline
 3                                   Hershey, Trial Attorney, Office of
 4                                   Immigration Litigation, United
 5                                   States Department of Justice,
 6                                   Washington, D.C.
 7
 8
 9
10            UPON DUE CONSIDERATION of this petition for review of

11   a decision of the Board of Immigration Appeals ("BIA"), IT IS

12   HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for

13   review is DENIED.

14            Petitioner Zu Jie Li, a native and citizen of the

15   People's Republic of China, seeks review of a May 15, 2009,

16   decision by the BIA denying his motion to reopen his removal

17   proceedings.     In re Zu Jie Li, No. A079 083 729 (B.I.A. May 15,

18   2009).

19            Li first entered the United States in November 2000

20   and subsequently was charged as removable by service of a Notice

21   to Appear.     On August 7, 2001, Li filed an application

22   requesting asylum, withholding of removal, and relief under the

23   Convention Against Torture.     The immigration judge ("IJ") held a

24   merits hearing on November 25, 2002.     Li testified that in March

25   2000, he and his girlfriend were arrested for attempting to

26   marry without a marriage certificate and that his girlfriend was


                                     - 2 -
1    forced to have an abortion once the authorities discovered she

2    was pregnant.    Li claimed that, were he removed to China, he

3    would be persecuted for opposition to the family planning

4    policies.

5                The IJ denied the requested relief, finding that Li

6    was not eligible for relief under 8 U.S.C. § 1101(a)(42) because

7    he was not married to his girlfriend when she was forced to have

8    an abortion.    The IJ further found Li not credible.   The BIA

9    affirmed the IJ's decision in January 2004.    In re Zu Hie Li,

10   No. A79 083 729 (B.I.A. Jan. 30, 2004).    The BIA held that, even

11   if Li were credible, he was not eligible for relief because he

12   and his girlfriend were not married at the time of the abortion,

13   when he departed from China, upon his arrival in the United

14   States, or when he filed his persecution claim.    Id. (declining

15   to extend its holding in In re C-Y-Z-, 21 I. & N. Dec. 915

16   (B.I.A. 1997), permitting spouses of aliens forced to undergo

17   involuntary sterilization or abortion to establish persecution

18   on account of political opinion, to the instant case).

19               Li did not seek review of the BIA's decision, nor did

20   he comply with the order of removal.    Instead, he waited more

21   than four years, until November 14, 2008, to file a motion to

22   reopen the BIA's January 2004 decision and request a stay of his

                                    - 3 -
1    removal.   Li pointed to the following "new circumstances" in

2    support of his motion:   (1) his former girlfriend had come to

3    the United States and received asylum based on a forced

4    abortion, (2) the two married in April 2004 and had a son, and

5    (3) he had converted to Christianity.    Li argued that his wife's

6    receipt of asylum validated the merits of his own case.

7    Moreover, Li argued that he had a well-founded fear of

8    persecution based on the birth of his U.S.-born child, his

9    application for asylum, and his conversion to Christianity in

10   light of a crackdown on underground churches in anticipation of

11   the 2008 Beijing Olympic Games.

12              The BIA dismissed Li's motion as untimely and denied

13   his request for a stay of removal.    In re Zu Jie Li, No. A079

14   083 729 (B.I.A. May 15, 2009).    The BIA noted that Li offered no

15   evidence to support his contentions that his wife was granted

16   asylum, that he would face persecution based on his application

17   for asylum, or that he would face persecution for his practice

18   of Christianity in the United States.    Id.1


         1
               The BIA also ruled that, to the extent Li sought to
     file a second or successive asylum application under 8 U.S.C. §
     1158(a)(2)(D), his request was denied. In his submission to
     this Court, Li clarifies that he never intended to argue that 8
     U.S.C. § 1158(a)(2)(D) provided him an independent basis for
     relief. Pet'r's Br. at 10.

                                   - 4 -
1               We review the BIA's denial of a motion to reopen for

2    abuse of discretion, "mindful that motions to reopen 'are

3    disfavored.'"    Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

4    (per curiam) (quoting INS v. Doherty, 502 U.S. 314, 322-23

5    (1992)).   This Court will find "such abuse only if the BIA's

6    decision-making was arbitrary or capricious, as evidenced by a

7    decision that provides no rational explanation for the agency's

8    conclusion, inexplicably departs from established policies, is

9    devoid of any reasoning, or contains only summary or conclusory

10   statements."    Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

11   Cir. 2008) (internal citations and quotation marks omitted).

12   Where the BIA considers the relevant evidence of country

13   conditions, we review the BIA's fact-finding under the

14   substantial evidence standard.    Id.   We will uphold an agency

15   finding of fact unless we conclude that "'any reasonable

16   adjudicator would be compelled to conclude to the contrary.'"

17   Shu Wen Sun v. Bd. of Immigration Appeals, 510 F.3d 377, 379 (2d

18   Cir. 2007) (per curiam) (quoting 8 U.S.C. § 1252(b)(4)(B)).

19              A motion to reopen must be filed within 90 days of the

20   relevant final administrative decision.     8 C.F.R. § 1003.2(c).

21   This time limitation may be excused if the applicant can

22   establish changed country conditions arising in the country of

                                    - 5 -
1    nationality based on evidence that is material and could not

2    have been discovered or presented at the previous proceeding.

3    Id.   To prevail on such a motion, the applicant "must also

4    establish prima facie eligibility for asylum, i.e., a realistic

5    chance that he will be able to establish eligibility."

6    Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (internal

7    quotation marks omitted).

8              The BIA did not abuse its discretion in denying Li's

9    untimely motion to reopen.   First, Li's motion was filed more

10   than four years after the BIA's 2004 Order, well beyond the 90-

11   day time limitation on motions to reopen.    Second, Li presented

12   evidence of his marriage, the birth of his child, and other

13   developments since he was ordered removed; however, such changes

14   in personal circumstances are insufficient to compel reopening.

15   Wei Guang Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 274

16   (2d Cir. 2006) ("The law is clear that a petitioner must show

17   changed country conditions in order to exceed the 90-day filing

18   requirement for seeking to reopen removal proceedings.    A

19   self-induced change in personal circumstances cannot suffice."

20   (internal citation omitted)); see also Yuen Jin v. Mukasey, 538

21   F.3d 143, 151 (2d Cir. 2008).    Third, even if a change in

22   country conditions were demonstrated, Li did not overcome the


                                     - 6 -
1    adverse credibility determination against him on this point.

2    See Kaur v. Bd. of Immigration Appeals, 413 F.3d 232, 234 (2d

3    Cir. 2005) (per curiam) (holding that BIA did not abuse

4    discretion in denying motion to reopen where movant did not

5    overcome prior adverse credibility determination); see also In

6    re S-Y-G-, 24 I. & N. Dec. 247, 252 (B.I.A. 2007) (noting that

7    BIA is "not inclined to favorably exercise discretion in the

8    case of an alien . . . who was previously found to have offered

9    incredible testimony to gain immigration benefits").

10              Further, the BIA did not abuse its discretion in

11   denying the motion to reopen despite Li's claimed conversion to

12   Christianity and the purported crackdown on underground churches

13   in relation to the 2008 Beijing Olympic Games.   Li provided no

14   evidence indicating that Chinese authorities were "either aware

15   of his activities or likely to become aware of his activities."

16   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (per

17   curiam).   Moreover, Li failed to present sufficient evidence

18   that the alleged crackdown would continue after the close of the

19   Olympic Games -- which had in fact closed by the time Li filed

20   his motion to reopen.

21              Finally, to the extent Li argues that the BIA did not

22   consider the evidence before it, this argument is rejected.     The

23   record does not compellingly suggest that the BIA failed to

24   consider any material evidence.   See Xiao Ji Chen v. U.S. Dep't


                                   - 7 -
1    of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006) (holding that

2    agency is not required to "expressly parse or refute on the

3    record each and every one of a petitioner's purported

4    explanations for testimonial inconsistencies or evidentiary

5    gaps," and is entitled to presumption that it has taken all

6    evidence into account "unless the record compellingly suggests

7    otherwise").   To the contrary, the BIA expressly listed and

8    weighed the evidence presented by Li.

9             We have considered all of Li's contentions raised in

10   his petition and found them to be without merit.    Accordingly,

11   the petition for review is DENIED.    As we have completed our

12   review, any stay of removal previously granted by this Court in

13   this petition is VACATED and any pending motion for a stay of

14   removal in this petition is DISMISSED as moot.

15

16                            FOR THE COURT:

17                            CATHERINE O’HAGAN WOLFE, Clerk of Court

18




                                   - 8 -
