Shi Wu Lin v. Sessions ( 2018 )

16-4277
Shi Wu Lin v. Sessions
BIA
A070 902 764
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 11th day of June, two thousand eighteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 GUIDO CALABRESI,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 SHI WU LIN,
14 Petitioner,
15
16 v. 16-4277
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Jay Ho Lee, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Leslie McKay,
27 Senior Litigation Counsel;
28 Virginia L. Gordon, Trial
29 Attorney, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 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 Shi Wu Lin, a native and citizen of the
6 People’s Republic of China, seeks review of a December 5,
7 2016, decision of the BIA denying his motion to reopen as
8 untimely and number barred. In re Shi Wu Lin, No. A070 902
9 764 (B.I.A. Dec. 5, 2016). We assume the parties’
10 familiarity with the underlying facts and procedural
11 history in this case.
12 The applicable standards of review are well established.
13 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
14 2008). It is undisputed that Shi Wu Lin’s 2016 motion to
15 reopen was untimely and number barred because it was filed
16 nearly nineteen years after his removal order became final
17 and was his third motion to reopen. See 8 U.S.C.
18 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). These
19 limitations are excused if reopening is sought to apply for
20 asylum “based on changed country conditions arising in the
21 country of nationality or the country to which removal has
22 been ordered, if such evidence is material and was not
23 available and would not have been discovered or presented
2
1 at the previous proceeding.” 8 U.S.C.
2 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
3 However, the BIA did not err in finding that Shi Wu Lin
4 failed to demonstrate a material change in conditions for
5 Christians in China.
6 “In determining whether evidence accompanying a motion
7 to reopen demonstrates a material change in country
8 conditions that would justify reopening, [the BIA]
9 compare[s] the evidence of country conditions submitted
10 with the motion to those that existed at the time of the
11 merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247,
12 253 (B.I.A. 2007). As the BIA found, reports from the U.S.
13 Department of State demonstrate that the Chinese government
14 has viewed unfavorably and mistreated unregistered
15 Christian groups since before Shi Wu Lin’s 1997 hearing.
16 Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
17 generally defer to the agency’s evaluation of the weight to
18 be afforded an applicant’s documentary evidence.”).
19 Although Shi Wu Lin takes issue with the BIA’s conclusion
20 that conditions have not materially changed, the task of
21 resolving conflicts in the record evidence is largely
22 within the agency’s discretion. Jian Hui Shao, 546 F.3d at
23 171; see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.
3
1 2007) (“Decisions as to . . . which of competing inferences
2 to draw are entirely within the province of the trier of
3 fact.”) (alteration in original). Accordingly, Shi Wu Lin
4 did not meet his burden of showing a material change as
5 needed to excuse his untimely and number-barred filing.
6 Contrary to Shi Wu Lin’s assertion, the BIA did not
7 abuse its discretion by ignoring country conditions
8 evidence in the record. The agency is not required to
9 “expressly parse or refute on the record each individual
10 argument or piece of evidence offered by the petitioner,”
11 Jian Hui Shao, 546 F.3d at 169 (quoting Zhi Yun Gao v.
12 Mukasey, 508 F.3d 86, 87 (2d Cir. 2007)), and “we presume
13 that [the agency] has taken into account all the evidence
14 before [it], unless the record compellingly suggests
15 otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
16 315, 336 n.17 (2d Cir. 2006). While Shi Wu Lin sets forth
17 several excerpts of the country conditions evidence, which
18 he argues show a worsening of conditions for underground
19 Christians in China since 2005, Shi Wu Lin was required to
20 establish a material change in conditions since 1997. In
21 re S-Y-G-, 24 I. & N. Dec. at 253. The BIA’s failure to
22 explicitly mention this evidence therefore does not
4
1 compellingly suggest that it was ignored. Xiao Ji Chen,
2 471 F.3d at 336 n.17.
3 Because the BIA did not abuse its discretion in denying
4 the motion as untimely and number barred based on Shi Wu Lin’s
5 failure to establish a material change in conditions in China,
6 we need not reach the BIA’s alternative ruling that Shi Wu
7 Lin failed to show his prima facie eligibility for relief.
8 See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
9 rule courts and agencies are not required to make findings on
10 issues the decision of which is unnecessary to the results
11 they reach.”).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of removal
14 that the Court previously granted in this petition is VACATED,
15 and any pending motion for a stay of removal in this petition
16 is DISMISSED as moot. Any pending request for oral argument
17 in this petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe,
22 Clerk of Court
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