22-6464 Wenzhe Cui v. Garland BIA A200 729 820

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of March, two thousand twenty- four.

PRESENT: RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

WENZHE CUI, Petitioner,

v. 22-6464 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Zhong Yue Zhang, Zhang & Associates, LLC, Flushing, NY.

FOR RESPONDENT: Brian M. Boynton, Principal Deputy Assistant Attorney General, Erica B. Miles, Assistant Director, Rachel P. Berman-Vaporis, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Wenzhe Cui, a native and citizen of the People’s Republic of

China, seeks review of a September 9, 2022 decision of the BIA denying his motion

to reopen his removal proceedings. In re Wenzhe Cui, No. A 200 729 820 (B.I.A.

Sept. 9, 2022). We assume the parties’ familiarity with the underlying facts and

procedural history.

We review the BIA’s denial of a motion to reopen for abuse of discretion and

any underlying factfinding for substantial evidence. See Jian Hui Shao v. Mukasey,

, 168–69 (2d Cir. 2008). The BIA abuses its discretion when it acts “in

an arbitrary or capricious manner,” such as when it “provides no rational

2 explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Li Yong Cao v.

U.S. Dep’t of Just.,

(2d Cir. 2005) (internal quotation marks

omitted). “[T]he administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.”

(b)(4)(B).

A noncitizen seeking to reopen must file a motion to reopen within ninety

days of the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2). However, the ninety-day deadline does not apply when, as alleged

here, the motion to reopen is premised “on changed country conditions arising in

the country of nationality or the country to which removal has been ordered, if

such evidence is material and was not available and would not have been

discovered or presented at the previous proceeding.” 8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also

(c)(3)(ii). If a petitioner shows his

motion is timely, then he must meet the “heavy burden” of establishing his prima

facie eligibility for asylum, meaning that “the proffered new evidence would likely

alter the result in h[is] case.” Jian Hui Shao,

(quoting INS v. Abudu,

3

(1988)). That burden is heavier still when the initial application

was denied based on an adverse credibility finding, as the motion to reopen must

“either overcome the prior determination [of adverse credibility] or show that the

new claim is independent of the evidence that was found [to be] not credible.”

Matter of F-S-N-,

, 3 (B.I.A. 2020); see also Kaur v. BIA,

(2d Cir. 2005). Moreover, the agency may still take the adverse credibility

finding into account when considering the new and independent claim, such as by

declining to credit documents submitted in support thereof. See Qin Wen Zheng

v. Gonzales,

, 147‒48 (2d Cir. 2007) (declining to credit a new document

submitted in support of a motion to reopen because the petitioner had been found

not credible in his prior testimony).

Here, Cui initially applied for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”) in 2010, seeking such relief

because he feared persecution by the Chinese Communist Party (“CCP”) over his

Christian religious practices and the assistance he provided to a North Korean

refugee. Citing inconsistencies in his evidence and implausible aspects of his

story, the agency found Cui not credible and denied his application in 2016. Cui

4 filed a motion to reopen that application in 2020, asserting that changed country

conditions and personal circumstances merited a different result. In support, Cui

pointed to new evidence that he had joined and begun publicly supporting an anti-

CCP political party, which allegedly prompted authorities to interrogate Cui’s

father in China over Cui’s dissident activities. The BIA, however, found that

Cui’s supporting documents were undermined by “irregularities” and failed to

rehabilitate his prior “history of lacking credibility.” Certified Admin. Record at

6. On that basis, the agency declined take his new documents “at face value” and

denied his motion to reopen.

Despite Cui’s various challenges, we see no

reason to disturb the agency’s decision.

As an initial matter, we reject Cui’s argument that the BIA erred in relying

on his prior adverse credibility finding when it considered his new claim premised

on his recent political dissent. To be sure, a petitioner’s new claim – based on

facts that are “independent” of his earlier testimony – is “not necessarily

foreclosed” merely because the agency previously found him not credible. Paul

v. Gonzalez,

(2d Cir. 2006) (emphasis omitted). However, the

agency may still consider the prior adverse credibility finding when it assesses the

5 evidence submitted in support of his new claim. See Qin Wen Zheng,

(declining to credit a new document submitted in support of a motion to

reopen because the petitioner had been found not credible in his prior testimony);

Siewe v. Gonzales,

(2d Cir. 2007) (holding that “a single instance

of false testimony may (if attributable to the petitioner) infect the balance of the

[petitioner’s] uncorroborated or unauthenticated evidence”). In other words, the

agency need not turn a blind eye to the fact that a petitioner was previously found

not credible, even when the agency analyzes a new and independent claim

asserted in a motion to reopen. Consequently, the agency did not err here when

it declined to take at “face value” Cui’s new documents in light of his prior lack of

credibility – an assessment that was compounded by irregularities in the new

documents themselves. Certified Admin. Record at 6.

For this reason, we also reject Cui’s arguments that the agency erred by

failing to consider the evidence in support of his new claim and by failing to find

that Cui established a case for relief. The agency properly considered (and

dismissed) that evidence when it observed the irregularities in those documents –

as further discussed below – and declined to credit them in light of Cui’s past lack

6 of credibility. The agency acted well within its discretion when it declined to

accept Cui’s new claims “at face value” and denied Cui’s motion.

Next, Cui faults the agency for relying on “minor translation errors and

typing mistakes” – the aforementioned irregularities – in his motion and

supporting evidence. Pet’r Br. at 25. However, the errors in Cui’s documents

bear on the authenticity of that evidence, which in turn gave the BIA sound

reasons to discredit it. Some of the articles purporting to show Cui’s membership

in the political party misspell the group’s name in the heading – errors not

attributable to the translator, given that the original documents contain an English-

language heading with the same misspelling. Further, the translated version of

an article purportedly written by Cui (which announced his decision to join the

dissident party) is dated inconsistently at its head and its close. Though this

inconsistency could possibly be attributed to a translation error, the agency was

not obliged to presume as much given Cui’s past credibility issues. See Qin Wen

Zheng,

; Siewe,

.

Finally, because Cui’s CAT claim was premised on the same facts and

evidence as his claims for asylum and withholding of removal, the agency did not

7 err in relying on the same reasoning – including its evaluation of credibility – to

deny reopening to reapply for CAT protection. See Hong Fei Gao v. Sessions,

(2d Cir. 2018) (“Where the same factual predicate underlies a

petitioner’s claims for asylum, withholding of removal, and protection under the

CAT, an adverse credibility determination forecloses all three forms of relief.”).

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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