Ji Xue He v. Sessions ( 2017 )

16-2136
He v. Sessions
BIA
A073 563 755
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
13th day of July, two thousand seventeen.
PRESENT:
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
JI XUE HE,
Petitioner,
v. 16-2136
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David M. Haghighi, Los Angeles, CA.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Jessica E. Burns,
Assistant Director; John F. Stanton,
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 Ji Xue He, a native and citizen of the People’s
Republic of China, seeks review of a May 25, 2016, decision of
the BIA denying his motion to reopen. In re Ji Xue He, No. A073
563 755 (B.I.A. May 25, 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, 546 F.3d 138, 168-69 (2d Cir.
2008). He’s original asylum application, which an IJ denied
in 1997, was based on his violation of China’s family planning
policies. Although He’s deportation became final in 1998, he
remained in the United States. In his motion to reopen, He
asserted that he converted to Christianity in 2015 and that
conditions for Christians have worsened in China since his
deportation order became final in 1998. He claims that the
worsened conditions excuse the untimely filing of his motion
and demonstrate his prima facie eligibility for asylum,
withholding of removal, and relief under the Convention Against
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Torture (“CAT”) based on his recent conversion to Christianity
in the United States. It is undisputed that He’s 2016 motion
to reopen was untimely, since it was filed more than 17 years
after his deportation order became final in 1998. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The 90-day
time limit for filing a motion to reopen does not apply, however,
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); 8 C.F.R.
§ 1003.2(c)(3). The BIA did not err in finding that He failed
to satisfy those requirements.
“In determining whether evidence accompanying a motion to
reopen demonstrates a material change in country conditions
that would justify reopening, [the BIA] 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-,
24 I. & N. Dec. 247, 253 (B.I.A. 2007). As an initial matter,
we note that He’s conversion to Christianity in the United
States constitutes a change in his personal circumstances, not
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a change in China’s country conditions. Thus, the exception to
the 90-day rule in 8 C.F.R. § 1003.2(c)(3) does not apply.
Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130 (2d Cir. 2005).
In any event, as the BIA found, the U.S. Department of State
reports demonstrate that the Chinese government has viewed
unfavorably and mistreated unregistered Christian groups since
before He’s 1997 hearing. He’s evidence further demonstrates
that the treatment of unregistered religious groups varies
widely from region to region, and there is no record evidence
of increased persecution of such groups in He’s home province.
Cf. Jian Hui Shao, 546 F.3d at 142, 149 (finding no error in
the BIA’s requirement that an applicant demonstrate local
enforcement of a government policy in a manner that would give
rise to a well-founded fear of persecution when the country
conditions reflect local variations in enforcement).
Accordingly, because the BIA reasonably found that He did
not demonstrate a material change in conditions in China, it
did not abuse its discretion in denying his motion to reopen
as untimely. See 8 U.S.C. § 1229a(c)(7)(C). We do not reach
the BIA’s alternative basis for denying He’s motion, that he
failed to establish his prima facie eligibility for relief.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
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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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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