Zhu v. Holder, (2nd Cir. 2009)
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07-5682-ag
Zhu v. Holder
BIA
A078 216 471
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
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
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 6 th day of August, two thousand nine.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
LI QIN ZHU,
Petitioner,
v. 07-5682-ag
NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ATTORNEY GENERAL ERIC H. HOLDER JR., *
Respondents.
FOR PETITIONER: Yee Ling Poon, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; Richard M. Evans, Assistant Director; Allen W.
Hausman, Senior Litigation Counsel, Office of Immigration Litigation, 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 DENIED.
Petitioner Li Qin Zhu, a native and citizen of the People's Republic of China, seeks review of the December 11, 2007 order of the BIA, denying her motion to reopen. In re Li Qin Zhu, No. A078 216 471 (B.I.A. Dec. 11, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.
We review the agency's denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Where the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency'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 agency did not err in denying Zhu's untimely and number-barred motion to reopen.
Zhu argues that the BIA erred in concluding that she failed to demonstrate material changed country conditions sufficient to excuse the time and number limitations for filing her motion to reopen. However, this argument fails where we have previously reviewed the BIA's consideration of similar evidence in the context of an untimely and number barred motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions. See id. at 169-72 (noting that "[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency"); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA must consider evidence such as "the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] . . . it may do so in summary fashion without a reviewing court presuming that it has abused its discretion").
To the extent Zhu argues that the BIA ignored the evidence she submitted, nothing in the record compels us to agree. See Jian Hui Shao, 546 F.3d at 169 (recognizing that the Court has rejected the notion that the agency must "expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner"); see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)(presuming that the agency "has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise").
Zhu further argues that the BIA abused its discretion when it found that her failure to authenticate the purported Village Committee notice diminished the weight of that document. That argument, however, is unavailing, as the BIA does not err when, as here, it relies on a prior adverse credibility determination to reject a document, submitted in support of a motion to reopen, that does not bear independent indicia of authenticity. See Qin Wen Zheng v.
Gonzales, 500 F.3d 143, 148-49 (2d Cir. 2007) (finding that the BIA's refusal to credit an unauthenticated document was not error where the rejection of the document was based substantially on legitimate credibility concerns and contrary evidence as opposed to being based solely on lack of authentication).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and 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:
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former acting Attorney General Michael B. Mukasey as a respondent in this case.
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