17-2123 Chen v. Barr BIA Lamb, IJ A098 384 418 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 14th day of August, two thousand nineteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 PETER W. HALL, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 SHUN-DER CHEN, 14 Petitioner, 15 16 v. 17-2123 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Alexander Kwok-Ho Yu, New York, 24 NY. 25 26 FOR RESPONDENT: Chad A. Readler, Acting Assistant 27 Attorney General; Carl McIntyre, 28 Assistant Director; Brooke M. 29 Maurer, Trial Attorney, Office of 30 Immigration Litigation, United 31 States Department of Justice, 32 Washington, DC. 1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Shun-Der Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a June 8, 2017,

7 decision of the BIA affirming a June 30, 2016, decision of an

8 Immigration Judge (“IJ”) denying his motion to reopen. In

9 re Shun-Der Chen, No. A 098 384 418 (B.I.A. June 8, 2017),

10 aff’g No. A 098 384 418 (Immig. Ct. N.Y. City June 30, 2016).

11 We assume the parties’ familiarity with the underlying facts

12 and procedural history in this case.

13 Under the circumstances of this case, we have reviewed

14 both the IJ’s and BIA’s decisions “for the sake of

15 completeness.” Wangchuck v. Dep’t of Homeland Sec.,

524, 528 (2d Cir. 2006). We review the denial of a motion

17 to reopen for abuse of discretion and the country conditions

18 determination for substantial evidence. Jian Hui Shao v.

19 Mukasey,

(2d Cir. 2008).

20 An alien seeking to reopen may file one motion to reopen

21 no later than 90 days after the final administrative decision. 2 1 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

(c)(2).

2 Chen’s motion to reopen was untimely because it was filed

3 more than four years after the final administrative decision.

4 See 8 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2).

5 However, the time limitation for filing a motion to reopen

6 does not apply if the motion is filed in order to apply for

7 asylum “based on changed country conditions arising in the

8 country of nationality or the country to which removal has

9 been ordered, if such evidence is material and was not

10 available and would not have been discovered or presented at

11 the previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii);

12 see also

(c)(3)(ii). The agency did not

13 abuse its discretion in finding that Chen’s evidence was

14 insufficient to establish a material change in conditions in

15 China.

16 The country conditions evidence reveals that the Chinese

17 government’s policy and treatment of Christians has remained

18 consistent since Chen’s 2006 hearing. See In re S-Y-G-, 24

, 253 (BIA 2007) (“In determining whether

20 evidence accompanying a motion to reopen demonstrates a

21 material change in country conditions that would justify 3 1 reopening, [the agency] compare[s] the evidence of country

2 conditions submitted with the motion to those that existed at

3 the time of the merits hearing below.”). As the IJ noted,

4 the United States has designated China as “country of

5 particular concern” under the Religious Freedom Act since

6 1999. The record demonstrates that since at least 2005,

7 Christians attending unauthorized churches in certain areas

8 in China faced repression.

9 As evidence that conditions have worsened, Chen cites

10 to several sources that are not part of the administrative

11 record. However, we may not consider these reports in

12 reviewing the agency’s decision. See 8 U.S.C.

13 § 1252(b)(4)(A) (limiting judicial review to the

14 administrative record that was before the agency). As to

15 reports that were part of the administrative record, Chen

16 cites a 2014 report for the proposition that “authorities

17 still regularly harassed and detained small groups that met

18 for religious purposes in homes and other locations.”

19 However, this statement does not demonstrate an increase in

20 persecution as a 2006 report also provides that the police

21 disrupted house church meetings and sometimes detained 4 1 worshippers. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (requiring

2 material change in conditions); In re S-Y-G-, 24 I. & N.

3 Dec. at 257 (“Change that is incremental or incidental does

4 not meet the regulatory requirements for late motions of

5 this type.”).

6 Moreover, where conditions vary by province, an applicant

7 is required to show a material change in conditions in his

8 home province. See Jian Hui Shao,

(When

9 policies “vary widely from one area of the country to another

10 . . . it is appropriate to review the evidence to determine,

11 first, what policy applies to the circumstances at issue and,

12 second, whether local officials would be inclined to view the

13 petitioner’s actions as a violation of that policy.”).

14 However, the only evidence that Chen cites regarding

15 persecution of Christians in his home province is information

16 that existed at the time of his original hearing.

17 Therefore, because the agency reasonably concluded that

18 Chen’s evidence failed to demonstrate a material change in

19 conditions in China as needed to excuse the untimely filing

20 of his motion, the agency did not abuse its discretion in

21 denying his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C). 5 1 Because this finding is dispositive, we do not reach the

2 agency’s alternative basis for denying Chen’s motion—his

3 failure to establish his prima facie eligibility for relief.

4 See INS v. Bagamasbad,

(1976) (“As a general

5 rule courts and agencies are not required to make findings on

6 issues the decision of which is unnecessary to the results

7 they reach.”).

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, any stay of removal

10 that the Court previously granted in this petition is VACATED,

11 and any pending motion for a stay of removal in this petition

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

13 in this petition is DENIED in accordance with Federal Rule of

14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15 34.1(b).

16 FOR THE COURT: 17 Catherine O’Hagan Wolfe, 18 Clerk of Court 19

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