         10-1948-ag
         Pan v. Holder
                                                                                       BIA
                                                                               A073 607 614
                              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 23rd day of February, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       Bi Yan Pan,
14                Petitioner,
15
16                       v.                                     10-1948-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL, BOARD OF IMMIGRATION
21       APPEALS,
22                Respondents.
23       _______________________________________
24
25       FOR PETITIONER:               Peter S. Gordon, Forest Hills, New
26                                     York.
27
28       FOR RESPONDENTS:              Tony West, Assistant Attorney
29                                     General; Paul Fiorino, Senior
30                                     Litigation Counsel; Seth A.
31                                     Director, Trial Attorney, Office of
32                                     Immigration Litigation, Civil
33                                     Division, United States Department
34                                     of Justice, 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       Bi Yan Pan, a native and citizen of the People’s

 6   Republic of China, seeks review of an April 19, 2010, order

 7   of the BIA denying her motion to reopen her removal

 8   proceedings.   In re Liu, No. A073 607 614 (B.I.A. Apr. 19,

 9   2010).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

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

12   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).     An alien who has been ordered removed may

14   file one motion to reopen, but must do so within 90 days of

15   the final administrative decision.    8 U.S.C. § 1229a(c)(7).

16   Here, the BIA did not abuse its discretion by denying Pan’s

17   motion to reopen as untimely, as she filed it more than six

18   years after her final order of removal.     See id.; 8 C.F.R.

19   § 1003.2(c)(2).

20       Although the time limits on motions to reopen may be

21   excused when the movant demonstrates changed country

22   conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA


                                     2
 1   reasonably concluded that only Pan’s personal circumstances

 2   had changed, as her claim was based on the fact that she

 3   began practicing Falun Gong in 2009.   See Wei Guang Wang v.

 4   BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting that “apparent

 5   gaming of the system in an effort to avoid [removal] is not

 6   tolerated by the existing regulatory scheme”); see also Yuen

 7   Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008) (holding

 8   that the existing legal system does not permit aliens who

 9   have been ordered removed “to disregard [those] orders and

10   remain in the United States long enough to change their

11   personal circumstances (e.g., by having children or

12   practicing a persecuted religion) and initiate new

13   proceedings via a new asylum application”).

14       Moreover, substantial evidence supports the BIA’s

15   conclusion that Pan failed to show a material change in

16   country conditions.   Although the evidence indicated that

17   repression of Falun Gong practitioners increased during the

18   2008 Olympics, the evidence also indicated that the

19   repression has been constant and ongoing since the time of

20   Pan’s hearing in 2001.   Accordingly, the BIA reasonably

21   determined that Pan failed to establish that conditions in

22   China had materially changed so as to warrant reopening.


                                   3
 1   See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007)

 2   (“Where there are two permissible views of the evidence, the

 3   fact finder’s choice between them cannot be clearly

 4   erroneous.”) (citations omitted); Xiao Ji Chen v. U.S. Dep’t

 5   of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that

 6   the weight afforded to the applicant’s evidence in

 7   immigration proceedings lies largely within the discretion

 8   of the IJ); see also Jian Hui Shao v. Mukasey, 546 F.3d 138,

 9   169 (2d Cir. 2008) (reviewing the BIA’s factual findings

10   regarding changed country conditions under the substantial

11   evidence standard).

12       Finally, given the BIA’s explicit references to the

13   documentation submitted with the motion to reopen, a

14   reasonable fact-finder would not be compelled to conclude

15   that the BIA ignored any material evidence that Pan

16   submitted.   See Wei Guang Wang, 437 F.3d at 275 (holding

17   that the BIA is not required to “expressly parse or refute

18   on the record each individual argument or piece of evidence

19   offered by the petitioner” as long as it “has given reasoned

20   consideration to the petition, and made adequate findings”)

21   (citations omitted); see also Xiao Ji Chen, 471 F.3d at 337

22   n.17 (presuming that the agency “has taken into account all


                                   4
 1   of the evidence before [it], unless the record compellingly

 2   suggests otherwise”).

 3       Accordingly, the BIA did not abuse its discretion by

 4   denying Pan’s motion. See Ali, 448 F.3d at 517.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

 8   is VACATED, and any pending motion for a stay of removal in

 9   this petition is DISMISSED as moot. Any pending request for

10   oral argument in this petition is DENIED in accordance with

11   Federal Rule of Appellate Procedure 34(a)(2), and Second

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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