         10-2766-ag
         Li v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A070 889 568


                         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 22nd day of March, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                ROSEMARY S. POOLER,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _______________________________________
13
14       ZUO PENG LI,
15                Petitioner,
16
17                      v.                                      10-2766-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:         Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:         Tony West, Assistant Attorney General;
27                               David V. Bernal, Assistant Director;
28                               Yedidya Cohen, Trial Attorney, Office of
29                               Immigration Litigation, Civil Division,
30                               United States Department of Justice,
31                               Washington, D.C.
32
 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 Zuo Peng Li, a native and citizen of China,

 6   seeks review of a June 16, 2010, order of the BIA affirming

 7   the July 2, 2008, decision of Immigration Judge (“IJ”)

 8   Gabriel C. Videla denying Li’s motion to reopen.     In re Zuo

 9   Peng Li, No. A070 889 568 (B.I.A. June 16, 2010), aff’g No.

10   A070 889 568 (Immig. Ct. N.Y. City July 2, 2008).     We assume

11   the parties’ familiarity with the underlying facts and

12   procedural history in this case.

13       Under the circumstances of this case, we have

14   considered both the IJ’s and the BIA’s opinions.     See Zaman

15   v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).     This Court

16   reviews the agency’s denial of a motion to reopen and the

17   BIA’s denial of a motion to remand for abuse of discretion.

18   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006); Li Yong

19   Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.

20   2005).

21       Here, the BIA did not abuse its discretion in declining

22   to consider Li’s new evidence, because it was adjudicating

23   an appeal from the IJ’s order.     See 8 C.F.R.

                                  2
 1   § 1003.1(d)(3)(iv) (“Except for taking administrative notice

 2   of commonly known facts such as current events or the

 3   contents of official documents, the Board will not engage in

 4   factfinding in the course of deciding appeals.”).

 5   Accordingly, the BIA properly determined whether remand was

 6   appropriate.   See id.   (“A party asserting that the Board

 7   cannot properly resolve an appeal without further

 8   factfinding must file a motion for remand.”).

 9       The BIA also did not abuse its discretion in declining

10   to remand Li’s case based on the new evidence.     The BIA

11   determined that Li’s brother’s letter was unreliable because

12   it was an unnotarized, unsworn copy that was not

13   corroborated by any other documents from a reliable source.

14   We defer to that ruling.    See Xiao Ji Chen v. U.S. Dep’t of

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

16   weight afforded to evidence in immigration proceedings lies

17   largely within the discretion of the agency).    Additionally,

18   the other evidence Li submitted was not “previously

19   unavailable” and could have been submitted or summarized

20   with his original motion to reopen.    See Li Yong Cao, 421

21   F.3d at 156 (explaining that the BIA may decline to remand

22   where the movant has failed to “comply with the requirement

23   of 8 C.F.R. § 3.2(c)(1) [now found at § 1003.2(c)(1)] that

                                    3
 1   his motion articulate material, previously unavailable

 2   evidence”).

 3       Nor did the agency abuse its discretion by denying Li’s

 4   motion to reopen as untimely, as it was filed more than ten

 5   years after his final order of removal.       See 8 U.S.C. §

 6   1229a(c)(7).   The time limits on motions to reopen may be

 7   excused when the movant demonstrates changed country

 8   conditions.    See 8 U.S.C. § 1229a(c)(7)(C)(ii).     But, as the

 9   BIA concluded, Li’s claim, based on the fact that he joined

10   the China Democracy Party in 2007, reflected no more than a

11   change in personal circumstances.       See Wei Guang Wang v.

12   BIA, 437 F.3d 270, 274 (2d Cir. 2006) (“[A]pparent gaming of

13   the system in an effort to avoid [removal] is not tolerated

14   by the existing regulatory scheme....”); see also Yuen Jin

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

16       Moreover, substantial evidence supports the agency’s

17   determination that Li failed to establish that conditions in

18   China had materially changed.       The evidence he submitted to

19   the agency documenting the persecution of pro-democracy

20   activists in China did not indicate that there had been any

21   change in that persecution between Li’s 1998 removal hearing

22   and 2008 when he filed his motion to reopen.       See U.S.C.

23   § 1229a(c)(7)(C)(ii).

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

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

 3   removal that the Court previously granted in this petition

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

 5   this petition is DISMISSED as moot.

 6

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10




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