KE CHIANG DAI v. HOLDER
KE CHIANG DAI, Petitioner,
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent.
United States Court of Appeals, Second Circuit.
January 4, 2012.
Tony West, Assistant Attorney General; Blair T. O'Connor, Assistant Director; John B. Holt, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.
Present: JON O. NEWMAN, ROBERT A. KATZMANN, SUSAN L. CARNEY, Circuit Judges.
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.
Ke Chiang Dai, a native and citizen of China, seeks review of an October 18, 2010, order of the BIA denying his motion to reopen. In re Ke Chiang Dai, No. A077 272 724 (B.I.A. Oct. 18, 2010). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We have reviewed the agency's denial of Dai's motion to reopen for abuse of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006), and its consideration of evidence of country conditions for substantial evidence,see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Because Dai's motion to reopen was untimely, he was required to establish that conditions in China had changed since his 2005 merits hearing. See 8 U.S.C. § 1229a(c)(7)(C); Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (providing that in evaluating evidence of changed country conditions, the BIA "compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below"). We note that there are several flaws in the agency's decision. For example, it concluded that Dai "failed to establish that conditions in China and,more specifically, his home province of Fujian, have changed fundamentally since his merits hearing" (emphasis added), when Dai's home province is Zhejiang. It stated that there was no evidence in the record that any increase in China's harassment and abuse against Christians around the Beijing Olympics had continued after the Olympics when the Congressional-Executive Commission on China's 2009 report explicitly stated that the "pre-Olympics campaign against Protestant activists and unregistered congregations in 2008 showed few signs of abatement in 2009." Its decision to discount a letter from Dai's friend Hong who lived in Ouhai District, Wenzhou City because Dai lived in Lucheng District, Wenzhou City and the two "never resided in the same city or district" and thus did not explain how they knew each other was arbitrary, given that Lucheng District and Ouhai District are neighboring districts within the same city.1 And its suggestion that Dai "does [not] have to attend a `mega-church' or the like" to practice Catholicism may be an inappropriate instruction about how Christians in China should tailor their religious practices to avoid persecution. See Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir. 2004) (concluding that the agency erred in assuming "that one is not entitled to claim asylum on the basis of religious persecution if . . . one can escape the notice of the persecutors by concealing one's religion"). Nevertheless, despite these flaws, we do not remand because the agency's overall assessment of Dai's evidence of changed country conditions is clear and supported by the record. Cf. Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 335 (2d Cir. 2006) (holding that an error does not require remand if remand would be futile because "we can state with confidence that the same decision would be made if we were to remand"). Regardless of the BIA's reasons for giving little weight to Hong's letter, we agree with the BIA that Hong's arrest for attending a house church did not establish changed country conditions because house churches were illegal at the time of Dai's 2005 merits hearing and Hong's arrest was a single incident and thus did not itself demonstrate a change in China's policies. Moreover, although Dai presented background evidence suggesting that religious activity was vigorously suppressed in China before and after the 2008 Beijing Olympic Games, the record is ambiguous concerning whether the repression surrounding the Games represented changed conditions in China or a continuation of the ongoing repression of Christians, and whether it had continued in the years after the Games. Given this ambiguity and because the agency considered and evaluated Dai's evidence, we find no error in its conclusion that he did not establish changed country conditions. See Jian Hui Shao, 546 F.3d at 171 ("We do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency."); Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Rather, a reviewing court must defer to that choice so long as the deductions are not illogical or implausible." (internal citations and quotations omitted)).