10-4328 (L) Gao v. Sessions BIA A095 710 413 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 TO 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 11th day of July, two thousand eighteen. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROSEMARY S. POOLER, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 MEI MI GAO, 14 Petitioner, 15 16 v. 10-4328 (L), 17 16-3314 (Con) 18 NAC 19 JEFFERSON B. SESSIONS, III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Jeffery R. 28 Leist, Senior Litigation Counsel; 29 Craig A. Newell, Jr., Trial 30 Attorney Office of Immigration 1 Litigation, United States 2 Department of Justice, Washington, 3 DC. 4 5 UPON DUE CONSIDERATION of these petitions for review of

6 decisions of the Board of Immigration Appeals (“BIA”), it is

7 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

8 review are DENIED.

9 Petitioner Mei Mi Gao, a native and citizen of the

10 People’s Republic of China, seeks review of August 31, 2016,

11 and September 30, 2010, decisions of the BIA denying her

12 motions to reopen her removal proceedings to apply for asylum,

13 withholding of removal, and relief under the Convention

14 Against Torture (“CAT”). In re Mei Mi Gao, No. A095 710 413

15 (B.I.A. Aug. 31, 2016, Sept. 30, 2010). We assume the

16 parties’ familiarity with the underlying facts and procedural

17 history in this case.

18 We have reviewed the BIA’s denial of Gao’s motions to

19 reopen for abuse of discretion, and the BIA’s factual findings

20 regarding country conditions under the substantial evidence

21 standard. Jian Hui Shao v. Mukasey,

(2d

22 Cir. 2008); Ali v. Gonzales,

(2d Cir. 2006).

2 1 It is undisputed that both of Gao’s 2010 and 2016 motions

2 to reopen were untimely, and that her second motion was number

3 barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

4 § 1003.2(c)(2). Although these limitations do not apply to

5 motions to reopen in order to seek asylum “based on changed

6 country conditions” since the time of the original hearing,

7 8 U.S.C. § 1229a(c)(7)(C)(ii);

(c)(3)(ii),

8 the BIA reasonably concluded that Gao did not establish any

9 material change in conditions in China.

10 I. 2010 Motion to Reopen

11 The BIA correctly held that the birth of Gao’s son in

12 2010 was a change in personal circumstances, not a change in

13 country conditions that could excuse the time limitation on

14 her motion to reopen. See Wei Guang Wang v. Bd. of

15 Immigration Appeals,

(2d Cir. 2006).

16 Gao’s motion did not allege any change in China’s family

17 planning policy or provide country conditions evidence from

18 either 2007 or 2010. Given this lack of evidence, the BIA

19 did not abuse its discretion in denying Gao’s 2010 motion.

20

21 3 1 II. 2016 Motion to Reopen

2 Like the birth of her son, Gao’s conversion to

3 Christianity in 2015 was a change in personal circumstances.

4 See Wei Guang Wang,

. While Gao asserted

5 that China’s treatment of Christians had materially worsened

6 since 2007, the BIA considered the evidence Gao submitted and

7 reasonably determined that China’s harassment of Christians

8 who attend underground churches was a “longstanding concern”

9 that existed at the time of Gao’s 2007 merits hearing and

10 that Gao’s evidence did not show a material change in

11 conditions for Christians. See In re S-Y-G-,

247, 253 (B.I.A. 2007) (“In determining whether evidence

13 accompanying a motion to reopen demonstrates a material

14 change in country conditions that would justify reopening,

15 [the agency] compare[s] the evidence of country conditions

16 submitted with the motion to those that existed at the time

17 of the merits hearing below.”). As the BIA concluded, Gao’s

18 evidence showed a continuation of former conditions. Gao

19 pointed out that the Chinese government has exerted strict

20 ideological control over state-sanctioned religious groups

21 since 1998. Certified Administrative Record (“CAR”) at 57. 4 1 She cited “new” regulations over religious affairs, but those

2 regulations went into effect in 2004 and 2005, before her

3 2007 hearing, and “merely codif[ied] past practices.”

4 at 14 (quoting 2006 State Dep’t Report). She cited excerpts

5 from State Department reports published between 2007 and

6 2015, attempting to show escalating mistreatment of

7 Christians, but even these excerpts reference “continuing”

8 mistreatment of Christians.

(2009 report that “the

9 Government continued to strictly control religious practice

10 . . . ”), 16 (2010 report that “officials continued to

11 scrutinize and . . . harass registered and unregistered

12 religious and spiritual groups”), 21 (2013 report that

13 “[r]eports continued to emerge . . . regarding state-

14 sanctioned raids on house churches” and “[m]embers of house

15 church congregations in particular remained subject to

16 official harassment and mistreatment”), 22 (2015 report that

17 “the government and Party continued to call on officials and

18 religious groups to ensure that religious doctrine and

19 practices adhered to government policy and Party goals”).

20 Gao argues that the BIA ignored the reports’ descriptions

21 of deteriorating conditions for Christians; but she does not 5 1 point to any specific evidence that was overlooked. See Xiao

2 Ji Chen v. U.S. Dep’t of Justice,

, 336 n.17 (2d

3 Cir. 2006) (“[W]e presume that the agency has taken into

4 account all of the evidence before [it], unless the record

5 compellingly suggests otherwise.”); Wei Guang Wang,

at 275 (holding that BIA need not “expressly parse or refute

7 on the record each . . . piece of evidence offered by the

8 petitioner.” (quotation marks omitted)). She also argues

9 that the BIA should have taken administrative notice of the

10 2006 State Department report, but it was her burden to submit

11 evidence establishing that country conditions have changed.

12 See 8 U.S.C. § 1229a(7)(B); Yuen Jin v. Mukasey,

(2d Cir. 2008).

14 Given Gao’s failure to establish a material change in

15 country conditions, the BIA did not abuse its discretion in

16 denying her motions to reopen as untimely and number barred.

17 See 8 U.S.C. § 1229a(c)(7)(A), (C);

(c)(2).

18 Because the BIA’s time and number rulings are dispositive, we

19 do not reach the BIA’s alternative holding regarding Gao’s

20 prima facie eligibility for asylum. INS v. Bagamasbad, 429

(1976). 6 1 For the foregoing reasons, the petitions for review are

2 DENIED. As we have completed our review, Gao’s stay motion

3 is DISMISSED as moot. Any pending request for oral argument

4 in these petitions is DENIED in accordance with Federal Rule

5 of Appellate Procedure 34(a)(2), and Second Circuit Local

6 Rule 34.1(b).

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court

7