15-2226 Li v. Whitaker BIA A073 132 519 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 23rd day of January, two thousand nineteen. 5 6 PRESENT: 7 JON O. NEWMAN, 8 DENNIS JACOBS, 9 PIERRE N. LEVAL, 10 Circuit Judges. 11 _____________________________________ 12 13 ZHANG LI, AKA QIANG LI, 14 Petitioner, 15 16 v. 15-2226 17 NAC 18 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney General; 28 Russel J.E. Verby, Senior 1 04122018-10 1 Litigation Counsel; Elizabeth R. 2 Chapman, Trial Attorney, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6

7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Zhang Li, a native and citizen of the People’s

12 Republic of China, seeks review of a June 16, 2015, decision

13 of the BIA denying his motion to reopen as untimely and number

14 barred. In re Zhang Li, No. A073 132 519 (B.I.A. June 16,

15 2015). We assume the parties’ familiarity with the

16 underlying facts and procedural history in this case.

17 The applicable standards of review are well established.

18 See Jian Hui Shao v. Mukasey,

(2d Cir.

19 2008). As an initial matter, contrary to Li’s contention,

20 the agency applied the correct burden when considering his

21 motion to reopen. See

; cf. Guan Shan Liao v. U.S.

22 Dep’t of Justice,

, 68-69 (2d Cir. 2002)

23 (concluding that BIA did not apply a more stringent burden of

24 proof than a well-founded fear because its language that an 2 04122018-10 1 applicant had not shown “that he would be subject to

2 persecution upon his return to China . . . simply fault[ed]

3 the applicant for failing to show that any of [his] actions

4 would even potentially subject [him] to persecution upon his

5 return to China.”).

6 Li moved to reopen his exclusion proceedings to apply

7 for asylum, alleging a fear of persecution in China on account

8 of the births of his U.S. citizen children in violation of

9 China’s population control program and his religious

10 practice. It is undisputed that Li’s motion to reopen was

11 untimely and number barred because it was his second motion

12 to reopen filed almost 20 years after his deportation order

13 became final. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

14

(c)(2). These time and numerical

15 limitations do not apply, however, if the motion is to reopen

16 proceedings in order to apply for asylum “based on changed

17 country conditions arising in the country of nationality or

18 the country to which removal has been ordered, if such

19 evidence is material and was not available and would not have

20 been discovered or presented at the previous proceeding.”

3 04122018-10 1 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

2 § 1003.2(c)(3)(ii).

3 For largely the same reasons set forth in Jian Hui Shao,

4 we find no error in the agency’s determination that Li failed

5 to demonstrate a material change in conditions related to the

6 enforcement of China’s population control program as needed

7 to excuse the untimely and number barred filing of his motion.

8 See

(noting that country conditions

9 evidence from 1998 to 2007 indicated that enforcement of the

10 family planning policy was generally lax in Fujian Province,

11 but that there were isolated reports of force being used).

12 Nor did the BIA err in finding no material change in

13 conditions as to the Chinese government’s treatment of

14 Christians since Li’s 1994 hearing. See In re S-Y-G-, 24 I.

15 & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether

16 evidence accompanying a motion to reopen demonstrates a

17 material change in country conditions that would justify

18 reopening, [the BIA] compare[s] the evidence of country

19 conditions submitted with the motion to those that existed at

20 the time of the merits hearing below.”).

4 04122018-10 1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, the pending motion

3 for a stay of removal in this petition is DENIED as moot.

4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court

5 04122018-10