         13-316
         Yan v. Holder
                                                                                       BIA
                                                                               A078 745 500
                          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 11th day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROSEMARY S. POOLER,
 9                BARRINGTON D. PARKER,
10                     Circuit Judges.
11       _____________________________________
12
13       LI XIAN YAN, AKA LI XIANG YANG,
14                Petitioner,
15
16                       v.                                       13-316
17                                                                NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Fuhao Yang, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Erica B. Miles, Senior
27                                     Litigation Counsel; C. Frederick
28                                     Sheffield, Trial Attorney; Mehak
29                                     Naveed, Legal Intern, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 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

 4   is DENIED.

 5       Petitioner Li Xian Yan, a native and citizen of the

 6   People’s Republic of China, seeks review of the December 31,

 7   2012 decision of the BIA denying his motion to reopen.     In

 8   re Li Xian Yan, No. A078 745 500 (B.I.A. Dec. 31, 2012).        We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       The BIA’s denial of Yan’s motion to reopen as untimely

12   and number barred was not an abuse of discretion.     See Kaur

13   v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).     An

14   alien may file one motion to reopen, generally no later than

15   90 days after the date on which the final administrative

16   decision was rendered in the proceedings sought to be

17   reopened.    8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

18   § 1003.2(c)(2).    There is no dispute that Yan’s 2012 motion

19   was untimely, as his final administrative order was issued

20   in 2003.     See 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

21   § 1229a(c)(7)(C)(ii).    However, the time limitation does not

22   apply to a motion to reopen if it is “based on changed


                                     2
 1   circumstances arising in the country of nationality . . . if

 2   such evidence is material and was not available and could

 3   not have been discovered or presented at the previous

 4   hearing.”   Id.

 5       The BIA’s determination that Yan’s individualized

 6   documents were insufficient to show changed country

 7   conditions was not an abuse of discretion.      Yan’s motion

 8   stated that he had mailed religious materials to a friend in

 9   China, and that the friend had been confronted by the

10   authorities and told to inform Yan that he must stop

11   proselytizing or be punished.       In support of this statement,

12   Yan offered a statement from his friend in China.       The BIA

13   permissibly discounted this statement because the friend was

14   unavailable for cross-examination, and his letter was

15   unaccompanied by independent corroborating evidence, such as

16   a shipping label or letter from the authorities.       See Xiao

17   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

18   2006) (weight afforded to the evidence “lies largely within

19   the discretion” of the agency); Qui Wen Zheng v. Gonzales,

20   500 F.3d 143, 146-47 (2d Cir. 2007) (upholding the agency’s

21   refusal to credit an applicant’s individualized evidence in

22   a motion to reopen when there had been an adverse

23   credibility determination in the original hearing).

                                     3
 1       The BIA also reasonably found that Yan’s background

 2   evidence did not support reopening.    Yan stated that the

 3   Chinese government was attempting to “completely eliminate”

 4   Christianity, but the agency accurately noted that State

 5   Department reports clearly indicate that some forms of

 6   Christianity are permitted.    The BIA also determined that

 7   Yan had not shown that he would likely suffer harm rising to

 8   the level of persecution.     See Ivanishvili v. U.S. Dep’t of

 9   Justice, 433 F.3d 332, 341 (2d Cir. 2006) (stating that the

10   harm must be sufficiently severe, rising above “mere

11   harassment”).   Moreover, the agency properly found that none

12   of Yan’s documentary evidence suggested he was more likely

13   than not to be tortured.    See Jian Xing Huang v. INS, 421

14   F.3d 125, 129 (2d Cir. 2005) (holding that a fear is not

15   objectively reasonable if it lacks “solid support” in the

16   record and is merely “speculative at best”).

17       Accordingly, the BIA did not abuse its discretion in

18   denying Yan’s motion to reopen as untimely and number

19   barred.   See 8 U.S.C. § 1229a(c)(7)(A) & (C)(i), (ii); 8

20   C.F.R. § 1003.2(c)(2).

21



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

2   DENIED.   As we have completed our review, the motion for

3   stay or removal is DENIED as moot.

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk
6
7




                                  5
