17-976 Chen v. Whitaker BIA A073 536 028

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.

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 7th day of January, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, RICHARD C. WESLEY, Circuit Judges. _____________________________________

XIN CHEN, Petitioner,

v. 17-976 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Theodore N. Cox, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Keith I. McManus, Assistant Director; John B. Holt, 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 Xin Chen, a native and citizen of the People’s

Republic of China, seeks review of a March 31, 2017, decision

of the BIA denying his motion to reopen. In re Xin Chen, No.

A073 536 028 (B.I.A. Mar. 31, 2017). We assume the parties’

familiarity with the underlying facts and procedural history

in this case. We have reviewed the BIA’s denial of the motion

to reopen for abuse of discretion and considered whether its

conclusion regarding changed country conditions is supported

by substantial evidence. Jian Hui Shao v. Mukasey,

(2d Cir. 2008).

In his motion to reopen, Chen asserted that he had

converted to Christianity in the United States and that

worsened conditions for Christians in China both excused the

untimely filing of a second motion to reopen and demonstrated

his prima facie eligibility for asylum, withholding of

removal, and relief under the Convention Against Torture. It

is undisputed that Chen’s 2016 motion to reopen was untimely

and number barred as it was his second motion and was filed

2 almost 20 years after his deportation order. See 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i);

(c)(2).

However, the time and number limitations for filing a

motion to reopen do not apply if reopening is sought to

apply for asylum and the motion “is based 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). “In determining whether

evidence accompanying a motion to reopen demonstrates a

material change in country conditions that would justify

reopening, [the agency] compare[s] the evidence of country

conditions submitted with the motion to those that existed

at the time of the merits hearing below.” In re S-Y-G-,

(B.I.A. 2007).

The agency committed two legal errors in its decision,

each of which is an abuse of discretion. First, the agency

found that Chen failed to demonstrate a material change in

country conditions because of record evidence demonstrating

that the Chinese government has viewed unfavorably and

3 mistreated unregistered Christian groups since before

Chen’s deportation proceedings. However, the agency ignored

record evidence that persecution of Christians has become

more common and intense, which “clearly” bears on the

changed conditions inquiry. See Paul v. Gonzales,

(2d Cir. 2006).

Second, the agency found that the record evidence

indicated that persecution varies significantly from region

to region, implying that Chen had failed to meet his burden

to establish a change in his home area, the Fujian

Province. See Jian Hui Shao v. Mukasey,

(2d Cir. 2008) (upholding BIA’s conclusion that

where treatment varies by region, petitioner must establish

a change in his home area). However, the agency did not

consider any record evidence bearing on the conditions in

Fujian Province. This was an error.

Nevertheless, we deny the petition because “we can

state with confidence that the [BIA] would adhere to [its]

decision were the petition remanded.” Xiao Ji Chen v. U.S.

Dep’t of Justice,

(2d Cir. 2006); see

also Cao He Lin v. U.S. Dep’t of Justice,

(2d Cir. 2005) (“[W]e are not required to remand where

4 there is no realistic possibility that, absent the errors,

the IJ or BIA would have reached a different conclusion.”).

While we do not think the BIA would adhere to its decision

concerning changed conditions for Christians in China

generally, there is no realistic possibility that the BIA

would have reached a different conclusion concerning

conditions in Fujian Province. Chen’s evidence does not

demonstrate increased persecution of Christian groups in

that province.

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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