Kong v. Holder, (2nd Cir. 2009)
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08-5277-ag
Kong v. Holder
BIA
A070-078-188
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
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DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of June, two thousand nine.
PRESENT:
HON. WILFRED FEINBERG,
HON. BARRINGTON D. PARKER,
HON. RICHARD C. WESLEY,
Circuit Judges.
CHION YIN KONG, A.K.A. CHING YING
KUANG,
Petitioner,
08-5277-ag
v. NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR PETITIONER: Andre Sobolevsky, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General, Civil Division; James A.
Hunolt, Senior Litigation Counsel; Nicole N. Murley, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED, in part, and DENIED, in part.
Petitioner, Chion Yin Kong, a native and citizen of the People's Republic of China, seeks review of an October 6, 2008 order of the BIA denying his motion to reopen his exclusion proceedings. In re Kong, No. A 070 078 188 (B.I.A. Oct. 6, 2008). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA's factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We find that the BIA did not err in denying Kong's untimely motion to reopen.
An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision or on or before September 30, 1996, whichever is later. 8 C.F.R.
§ 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially "changed circumstances arising in the country of nationality." 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not abuse its discretion in denying Kong's motion to reopen as untimely where it was filed more than twelve years after September 30, 1996. See 8 C.F.R. § 1003.2(c)(2). Moreover, substantial evidence supports the BIA's conclusion that Kong failed to establish materially changed conditions in China.
See Jian Hui Shao, 546 F.3d at 169.
The BIA reasonably determined that much of the evidence Kong submitted concerned his personal activities in the United States rather than country conditions in China. This evidence included documents showing his marriage to a U.S. citizen, the birth of his U.S. citizen daughter, and his involvement in the Chinese Democracy Party ("CDP"). See Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). As the BIA found, Kong's involvement in the CDP was a change in his personal circumstances, not conditions in China. To the extent that Kong's arguments can be construed as asserting that the Chinese government's awareness of his CDP activities constitutes changed circumstances excusing the untimely filing of his motion to reopen, the BIA reasonably viewed the motion as based on "circumstances entirely of his own making," which did not exempt the motion from the applicable time and number bars. See Wei Guang Wang, 437 F.3d at 274. Indeed, it would defeat the purpose of the existing statutory and regulatory scheme to find that an alien who changes his personal circumstances, and makes his potential persecutors aware of that change, may establish changed country conditions. See 8U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); see also Yuen Jin, 538 F.3d at 155-56.
The BIA also reasonably found that none of the evidence Kong submitted in support of his family planning claim demonstrated changed circumstances in China. Indeed, the only evidence he submitted in support of that claim was the birth certificates of his U.S. citizen daughter and stepson and his own affidavit. This evidence does not indicate that conditions have changed with respect to China's family planning policy. See Jian Hui Shao, 546 F.3d at 169. We decline Kong's request that we remand his case for the agency to consider additional evidence that he did not submit before the BIA. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).
Although Kong argues that the BIA abused its discretion in failing to explicitly consider all of the record evidence, we "presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise." See Xiao Ji Chen v. U.S.
Dep't of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006).
Contrary to Kong's argument, the BIA did not err in failing to explicitly address the evidence indicating that his family would face hardship upon his removal because such hardship would not excuse the time limitation on his motion to reopen. See 8 C.F.R. § 1003.2(c)(3).
Accordingly, we conclude that the BIA's denial of Kong's motion to reopen was not an abuse of discretion. 2 2 Because Kong has failed to raise any claim before this Court based on his illegal departure from China, as he did in his motion before the BIA, we deem any such argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d This Court lacks jurisdiction to review the BIA's decision not to reopen Kong's case sua sponte under 8 C.F.R.
§ 1003.2(a), because such a decision is "entirely discretionary." Ali, 448 F.3d at 518. To the extent Kong challenges that aspect of the BIA's decision, we dismiss the petition for review.
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By: 540, 541 n.1, 545 n.7 (2d Cir. 2005).
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