17-2731 Gao v. Barr BIA Nelson, IJ A073 131 789 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 22nd day of February, two thousand nineteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, ROBERT D. SACK, DEBRA ANN LIVINGSTON, Circuit Judges. _____________________________________ BIN GAO, Petitioner,

v. 17-2731 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: James A. Lombardi, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Janette L. Allen, Senior Litigation Counsel; Lance L. Jolley, 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 Bin Gao, a native and citizen of the People’s

Republic of China, seeks review of an August 22, 2017,

decision of the BIA affirming a February 24, 2017, decision

of an Immigration Judge (“IJ”) denying Gao’s motion to reopen.

In re Bin Gao, No. A073 131 789 (B.I.A. Aug. 22, 2017), aff’g

No. A073 131 789 (Immig. Ct. N.Y. City Feb. 24, 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).

Gao moved to reopen in order to apply for asylum,

asserting that he had converted to Christianity in the United

States and that worsening conditions for Christians in China

excused the untimely filing of his motion. It is undisputed

that Gao’s 2017 motion to reopen was untimely as it was filed

nearly twenty years after his 1997 deportation order. See

2 8 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2),

1003.23(b)(1). However, the time limitation for filing a

motion to reopen does 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), 1003.23(b)(4)(i). The agency did not

err in finding that Gao failed to demonstrate such conditions.

Gao does not dispute that his conversion to Christianity

and active religious practice constituted changes in personal

circumstances that do not fall under the exception for changed

country conditions to the usual time limitation. See Li Yong

Zheng v. U.S. Dep’t of Justice,

(2d Cir.

2005). Accordingly, Gao had to show a material change in

conditions in China. Because conditions for Christians in

China vary by province, Gao had to establish a material change

relevant to his home province of Fujian. See Jian Hui Shao,

(“[P]olicies and the means used to

enforce them can vary widely from one area of the country to

3 another. Thus . . . it is appropriate to review the evidence

to determine, first, what policy applies to the circumstances

at issue and, second, whether local officials would be

inclined to view the petitioner’s actions as a violation of

that policy.”).

We find no error in the agency’s conclusion that Gao

failed to show the relevant change. “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-,

(BIA 2007). As the BIA stated, the 1995

U.S. State Department report showed “a longstanding

restriction by the Chinese government on the public practice

of Christianity.” Special App. 3. That 1995 report provided

that “[t]he government generally tolerates the existence and

activities of the unsanctioned churches,” but “has

intermittently harassed [and raided and closed] unregistered

churches, and has declared its intent to register all of them

by the end of 1995, but implementation continues to be more

vigorous in some regions than in others.” Admin. Rec. 366.

4 Concerning Fujian province, the report noted “[a] growing

number of cases from China, especially from the Fuzhou area

in Fujian Province, claim persecution on account of

religion,” and that “religious . . . persecution . . .

undoubtedly exists . . . [and] [h]ouse churches [in this area]

are probably monitored and perhaps harassed as elsewhere in

China, but we have no reports thereof.” Admin. Rec. 366,

368. By comparison, there is no record evidence of any recent

religious persecution in Gao’s home province of Fujian.

Thus, on this record, the agency was not compelled to conclude

that Gao’s evidence reflected a change in conditions material

to his fear of harm as a Christian. See Jian Hui Shao,

. The agency therefore did not abuse its

discretion in denying Gao’s motion to reopen as untimely.

See 8 U.S.C. § 1229a(c)(7)(C).

The timeliness finding is dispositive, and we do not

reach the alternate ruling that Gao failed to establish prima

facie eligibility for relief and did not merit reopening as

a matter of discretion. See

(b)(3) (“The

Immigration Judge has discretion to deny a motion to reopen

even if the moving party has established a prima facie case

for relief.”); INS v. Abudu,

, 104–05 (1988)

5 (observing that the agency may deny an untimely motion for

failure to demonstrate changed country conditions or prima

facie eligibility for the underlying relief); INS v.

Bagamasbad,

(1976) (“As a general rule courts

and agencies are not required to make findings on issues the

decision of which is unnecessary to the results they reach.”).

To the extent Gao challenges the agency’s decision not to

exercise its authority to reopen sua sponte, we lack

jurisdiction to review that determination. See Centurion v.

Sessions,

(2d Cir. 2017) (“We do not have

jurisdiction to review the . . . entirely discretionary

refusal to reopen a case sua sponte.” (internal quotation

marks omitted)).

For the foregoing reasons, the petition for review is

DENIED.

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

6