         11-3256-ag
         Liu v. Holder
                                                                                       BIA
                                                                               A073 647 232
                          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 Richard C. Lee United
 3       States Courthouse, 141 Church Street, in the City of New
 4       Haven, Connecticut, on the 25th day of May, two thousand
 5       twelve.
 6
 7       PRESENT:
 8                DENNIS JACOBS,
 9                     Chief Judge,
10                JON O. NEWMAN,
11                ROBERT D. SACK,
12                     Circuit Judges.
13       _______________________________________
14
15       YONG BIAO LIU,
16                Petitioner,
17
18                       v.                                     11-3256-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       _______________________________________
24
25       FOR PETITIONER:               Thomas D. Barra, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Melissa Neiman-Kelting,
29                                     Senior Litigation Counsel; Ilissa M.
30                                     Gould, Trial Attorney, Office of
31                                     Immigration Litigation, United
32                                     States Department of Justice,
33                                     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       Yong Biao Liu, a native and citizen of the People’s

 6   Republic of China, seeks review of a July 14, 2011, decision

 7   of the BIA denying his motion to reopen.     In re Yong Biao

 8   Liu, No. A073 647 232 (B.I.A. July 14, 2011).     We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history of this case.

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

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

13   (2d Cir. 2006).     An alien may file only one motion to reopen

14   and must do so within 90 days of the agency’s final

15   administrative decision.     8 U.S.C. § 1229a(c)(7)(A), (C);

16   8 C.F.R. § 1003.2(c)(2).     Although Liu’s motion was

17   indisputably untimely and number-barred because it was filed

18   more than eight years after the agency’s final order of

19   deportation and it was his second motion to reopen,

20   see 8 U.S.C. § 1229a(c)(7)(A),(C)(i), there is no time or

21   numerical limitation for filing a motion to reopen if it is

22   “based on changed country conditions arising in the country

23   of nationality or the country to which removal has been

                                     2
 1   ordered, if such evidence is material and was not available

 2   and would not have been discovered or presented at the

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

 4   8 C.F.R. § 1003.2(c)(3)(ii).

 5       Here, the BIA did not abuse its discretion in finding

 6   that the evidence Liu submitted in support of his motion to

 7   reopen was not material to his claim that he feared

 8   persecution if returned to China on account of his “Falun

 9   Gong identity,” as the evidence did not establish that Liu

10   was in fact a practitioner of Falun Gong.     See INS v. Abudu,

11   485 U.S. 94, 104-05 (1988) (recognizing that a movant’s

12   failure to produce material evidence is an independent basis

13   for the denial of a motion to reopen). Indeed, as the BIA

14   found, neither the affidavit or photographs purportedly

15   depicting his participation in Falun Gong-related activities

16   in the United States, nor the country conditions evidence in

17   the record, established that Liu was practicing Falun Gong.

18   See Abudu, 485 U.S. at 104-05.     Furthermore, contrary to

19   Liu’s position, the BIA properly declined to accord

20   probative weight to the vague assertions that he had a

21   “Falun Gong identity,” given the agency’s underlying adverse

22   credibility determination.


                                    3
 1   See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.

 2   2007) (relying on the doctrine falsus in uno, falsus in

 3   omnibus to conclude that the agency may decline to credit

 4   documentary evidence submitted with a motion to reopen by an

 5   alien who was found not credible in the underlying

 6   proceeding); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

 7   315, 342 (2d Cir. 2006) (holding that the weight afforded to

 8   the applicant’s evidence in immigration proceedings lies

 9   largely within the agency’s discretion).

10       Additionally, the BIA reasonably determined that the

11   record did not demonstrate Liu’s prima facie eligibility for

12   relief.   See Abudu, 485 U.S. at 104 (holding that the BIA

13   may deny a motion to reopen on the ground that the movant

14   has not established prima facie eligibility for the

15   underlying relief sought).   Indeed, as the BIA found, Liu

16   failed to demonstrate an objectively reasonable fear of

17   persecution, as he did not present any evidence that Chinese

18   officials were aware or would become aware of his “Falun

19   Gong identity,” or that the Chinese government targets

20   similarly-situated individuals upon their return to China.

21   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.

22   2008) (holding that an applicant may establish eligibility

23   for asylum based exclusively on activities undertaken after


                                   4
 1   his arrival in the United States so long as he demonstrates

 2   that “authorities in his country are aware of his activities

 3   or likely to become aware of his activities”); Jian Xing

 4   Huang v. INS, 421 F.3d 125, 128 (2d Cir. 2005) (stating that

 5   to demonstrate objective reasonableness, the applicant must

 6   show that a “reasonable person in the petitioner’s

 7   circumstances would fear persecution if returned to his

 8   native country”).

 9       Accordingly, because Liu failed to present material

10   evidence that he would be affected by any change in

11   conditions in China, the BIA did not abuses its discretion

12   in denying is motion to reopen.    See 8 U.S.C.

13   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see also

14   Abudu, 485 U.S. at 104.

15       For the foregoing reasons, the petition for review is

16   DENIED.    Any pending request for oral argument in this

17   petition is DENIED in accordance with Federal Rule of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                                FOR THE COURT:
21                                Catherine O’Hagan Wolfe, Clerk
22
23




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