20-2464 Chen v. Garland BIA A097 977 631

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 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 16th day of September, two thousand twenty- 5 two. 6 7 PRESENT: 8 DENNIS JACOBS, 9 SUSAN L. CARNEY, 10 JOSEPH F. BIANCO, 11 Circuit Judges. 12 _____________________________________ 13 14 XIU ZHU CHEN, 15 Petitioner, 16 17 v. 20-2464 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Gary J. Yerman, New York, NY. 25 26 FOR RESPONDENT: Brian Boynton, Acting Assistant 27 Attorney General; Bernard A. 28 Joseph, Senior Litigation Counsel; 29 Erik R. Quick, Trial Attorney, 30 Office of Immigration Litigation, 31 United States Department of 32 Justice, 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 Xiu Zhu Chen, a native and citizen of the

6 People’s Republic of China, seeks review of a July 17, 2020,

7 decision of the BIA denying her third motion to reopen. In

8 re Xiu Zhu Chen, No. A 097 977 631 (B.I.A. July 17, 2020). We

9 assume the parties’ familiarity with the underlying facts and

10 procedural history.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion and we review a finding regarding country

13 conditions for substantial evidence. See Jian Hui Shao v.

14 Mukasey, 546 F.3d 168–69 (2d Cir. 2008). We find no abuse

15 of discretion here.

16 It is undisputed that Chen’s 2020 motion to reopen was

17 time and number barred because it was her third motion to

18 reopen, and she filed it 14 years after her removal order.

19 See 8 U.S.C. § 1229a(c)(7)(A) (permitting only one motion to

20 reopen), (C)(i) (providing 90-day deadline for motions to

21 reopen);

(c)(2) (same). There is an 2 1 exception to these time and number limitations where the

2 movant seeks to reopen to apply for asylum “based on changed

3 country conditions arising in the country of nationality or

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

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

6 been discovered or presented at the previous

7 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

(c)(3)(ii).

9 Chen asserted that she became a Christian in the United

10 States and that Chinese authorities were committing an

11 increasing number of human rights abuses against Christians.

12 However, her practice of Christianity is not itself a changed

13 condition. See Wei Guang Wang v. BIA,

, 273–74

14 (2d Cir. 2006) (explaining difference between a change in

15 personal circumstances and changed conditions needed to

16 excuse limits on motions to reopen). And substantial

17 evidence supports the BIA’s conclusion that Chen’s country

18 conditions evidence did not reflect a material change in

19 conditions in China. See Jian Hui Shao, 546 F.3d at 169.

20 “In determining whether evidence accompanying a motion

21 to reopen demonstrates a material change in country 3 1 conditions that would justify reopening, [the BIA] compare[s]

2 the evidence of country conditions submitted with the motion

3 to those that existed at the time of the merits hearing

4 below.” In re S–Y–G–,

(B.I.A. 2007);

5 see also Jian Hui Shao, 546 F.3d at 168 (explaining that

6 noncitizen bears a “heavy burden” of proof on a motion to

7 reopen). The BIA compared the country conditions evidence

8 from the 2003 and 2004 to the evidence of conditions in 2018

9 and 2019 and reasonably concluded that the evidence did not

10 show a material change. State Department reports about

11 conditions in 2003 and 2004 established that government

12 respect for religious freedom was poor, that leaders and

13 regular worshippers in unregistered, house churches were

14 harassed, detained, and physically abused, and that

15 government scrutiny of these churches was intense and

16 widespread. U.S. Dept. of State 2003 Country Reports on

17 Human Rights Practices in China, https://2009-

18 2017.state.gov/j/drl/rls/hrrpt/2003/27768.htm; Certified

19 Admin. Record at 743–46 (2004 State Dep’t Report). The 2018

20 to 2019 evidence reflects new regulations on the ability of

21 these churches to practice, the arrests of practicing 4 1 Christians and church leaders, and the demolition of churches

2 and religious sites. See Certified Admin. Record at 60–61,

3 164–66, 205, 241, 270. On this record, the BIA reasonably

4 concluded that there had not been a material change in

5 conditions as required to excuse the time and number

6 limitations on Chen’s motion. See

1229a(c)(7)(C)(ii); Jian Hui Shao, 546 F.3d at 169 (upholding

8 agency’s finding of no changed country conditions where the

9 movant “failed to demonstrate a material change in the

10 substance of China’s population control policy”); see In re

11 S–Y–G–,

(“Change that is incremental

12 or incidental does not meet the regulatory requirements for

13 late motions of this type.”).

14 Finally, Chen’s argument that the BIA ignored evidence

15 is unavailing. “[W]e do not demand that the BIA expressly

16 parse or refute on the record each individual argument or

17 piece of evidence offered by the petitioner.” Jian Hui Shao,

18 546 F.3d at 169. “Indeed, we presume that [the agency] has

19 taken into account all of the evidence before [it], unless

20 the record compellingly suggests otherwise.” Xiao Ji Chen v.

21 U.S. Dep’t of Justice,

, 336 n.17 (2d Cir. 2006). 5 1 The BIA considered the evidence Chen submitted with her motion

2 to reopen, as well as the evidence she submitted to the

3 immigration court with her original asylum claim, and it took

4 administrative notice of a State Department report. Nothing

5 “compellingly suggests” that the BIA failed to take into

6 account all of the evidence.

7 In sum, the BIA did not abuse its discretion in denying

8 the motion to reopen as time and number barred because

9 substantial evidence supports its conclusion that Chen failed

10 to establish a material change in conditions for Christians

11 in China. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i), (ii).

12 Accordingly, we do not reach the BIA’s alternative conclusion

13 that Chen failed to demonstrate her prima facie eligibility

14 for asylum. INS v. Bagamasbad,

(1976) (“As

15 a general rule courts and agencies are not required to make

16 findings on issues the decision of which is unnecessary to

17 the results they reach.”).

18

6 1 For the foregoing reasons, the petition for review is

2 DENIED. All pending motions and applications are DENIED and

3 stays VACATED.

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

7