16-3061 Ye v. Barr BIA A098 718 081/307

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 3rd day of September, two thousand nineteen.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, PIERRE N. LEVAL, Circuit Judges. _____________________________________

FANG YE, BO XIN CHEN, Petitioners,

v. 16-3061 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

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

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Erik R. Quick, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC. 06152016-10 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.

Petitioners Fang Ye and Bo Xin Chen, natives and citizens

of the People’s Republic of China, seek review of an August

29, 2016, BIA decision denying their motion to reopen their

removal proceedings. In re Fang Ye, Bo Xin Chen, Nos. A098

718 081/307 (B.I.A. Aug. 29, 2016). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

The applicable standards of review are well established.

See Jian Hui Shao v. Mukasey,

(2d Cir.

2008). Petitioners moved to reopen their removal proceedings

to present evidence of their claimed fear of persecution based

on the births of their second child in the United States

purportedly in violation of China’s population control

program.

It is undisputed that Petitioners’ motion to reopen was

untimely because it was filed more than five years after they

were ordered removed. See 8 U.S.C. § 1229a(c)(7)(C)(i);

(c)(2). The time limitation does not apply

if the motion is to reopen proceedings in order to apply for 2 06282019-1 asylum “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).

We find no error in the BIA’s determination that

Petitioners failed to demonstrate materially changed country

conditions related to the enforcement of the family planning

policy. See Jian Hui Shao,

.

Contrary to Petitioners’ argument, a comparison of the BIA’s

2011 decision denying asylum and its 2016 decision declining

to reopen does not support a finding of changed conditions

because in both decisions the BIA found that family planning

officials in Petitioners’ home province primarily used

economic incentives and punishments to enforce the family

planning policy and that “incidents of coercion . . .

have been a longstanding concern . . . .” BIA op. at 3.

Further, the BIA did not violate due process by recognizing

recent country conditions evidence that the Chinese

government intends to relax the family planning policy rather

than make it stricter. See

(providing

that it is well-settled that the BIA has the authority to 3 06282019-1 take administrative notice of country conditions in State

Department reports (citing

(d)(3)(iv))).

Accordingly, because Petitioners did not establish a

material change in conditions in China, the BIA did not abuse

its discretion in denying their motion to reopen as untimely.

See 8 U.S.C. § 1229a(c)(7)(C);

(c). We do

not reach the BIA’s alternative basis for denying

Petitioners’ motion—their failure to establish prima facie

eligibility for relief. See 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.”).

For the foregoing reasons, the petition for review is

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

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

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

4 06282019-1