Xiao Shi Pan v. Lynch ( 2016 )

15-1225
Pan v. Lynch
BIA
A087 462 992
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 8th day of September, two thousand sixteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO SHI PAN,
14 Petitioner,
15
16 v. 15-1225
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, N.Y.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Cindy
27 Ferrier, Assistant Director;
28 Kimberly A. Burdge, Trial Attorney;
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
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 is
4 DENIED.
5 Petitioner Xiao Shi Pan, a native and citizen of the
6 People’s Republic of China, seeks review of a March 19, 2015,
7 decision of the BIA denying his untimely motion to reopen. In
8 re Xiao Shi Pan, No. A087 462 992 (B.I.A. Mar. 19, 2015). We
9 assume the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen “for abuse
12 of discretion.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
13 2006). When the BIA considers relevant evidence of country
14 conditions in evaluating a motion to reopen, we review the BIA’s
15 factual findings under the substantial evidence standard.
16 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
17 It is undisputed that Pan’s 2015 motion to reopen was
18 untimely because his order of removal became final in 2011.
19 8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing
20 motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same); see 8 U.S.C.
21 § 1101(a)(47)(B)(i). Although this time limitation may be
22 excused if the motion “is based on changed country conditions
2
1 arising in the country of nationality or the country to which
2 removal has been ordered, if such evidence is material and was
3 not available and would not have been discovered or presented
4 at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii), the
5 BIA reasonably concluded that Pan failed to establish
6 materially changed conditions for house-church Christians in
7 China.
8 “In determining whether evidence accompanying a motion to
9 reopen demonstrates a material change in country conditions
10 that would justify reopening, [the BIA] compare[s] the evidence
11 of country conditions submitted with the motion to those that
12 existed at the time of the merits hearing below.” In re S-Y-G-,
13 24 I. & N. Dec. 247, 253 (B.I.A. 2007). The evidence here
14 reasonably demonstrates that the Chinese government has
15 continued to target unregistered Christian groups since the
16 time of Pan’s March 2010 merits hearing; it does not indicate
17 that conditions have worsened for individuals similarly
18 situated to Pan. See Xiao Ji Chen v. U.S. Dep’t of Justice,
19 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight
20 accorded to evidence lies largely within the discretion of the
21 agency). According to the 2007 State Department Profile of
22 Asylum Claims and Country Conditions, which reflects conditions
3
1 at the time of Pan’s 2010 hearing, Chinese security officials
2 used threats, detention, and imprisonment to target
3 unregistered religious leaders and their followers. The
4 evidence submitted in support of Pan’s motion, including the
5 2012 and 2013 Annual Reports of the Congressional-Executive
6 Commission on China and the U.S. State Department’s 2013 Annual
7 Report of International Religious Freedom, reflect that these
8 practices have continued.
9 Although Pan cites to these very reports in his brief, he
10 insists that the BIA wholly mischaracterized the evidence by
11 concluding that it demonstrated continued, rather than
12 worsened, conditions. To support this assertion, Pan points
13 to the U.S. State Department’s 2011 International Religious
14 Freedom Report, which describes a “marked deterioration during
15 2011 in the [Chinese] government’s respect for and protection
16 of religious freedom.” That “marked deterioration,” however,
17 concerned Buddhists in the Tibetan Autonomous Region; the
18 following page of that same report states that “[c]rackdowns
19 on Christian house churches continued.”
20 Last, Pan’s assertions that the BIA completely ignored
21 relevant sections of the country reports, wholly discounted the
22 ChinaAid reports, and did not properly weigh his evidence, are
4
1 misplaced. We presume that the agency “has taken into account
2 all of the evidence before [it], unless the record compellingly
3 suggests otherwise,” and the weight accorded to country
4 conditions evidence “lies largely within the discretion” of the
5 agency. Xiao Ji Chen, 471 F.3d at 337 n.17, 342 (alteration
6 and internal quotation marks omitted). Here, the BIA
7 explicitly discussed the country conditions evidence in its
8 decision, and, thus, the record does not compellingly suggest
9 that it was ignored. If, as here, “the BIA ‘has given reasoned
10 consideration . . . and made adequate findings,’” it need not
11 “‘expressly parse or refute on the record’ each . . . piece of
12 evidence offered by the petitioner.” Wei Guang Wang v. BIA,
13 437 F.3d 270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen, 434 F.3d
14 at 160 n.13). The task of resolving conflicts in the record
15 evidence, moreover, lies “largely within the discretion of the
16 agency.” Jian Hui Shao, 546 F.3d at 171. The BIA was also
17 entitled to find Pan’s evidence, including the ChinaAid
18 reports, immaterial in light of the underlying adverse
19 credibility determination. Kaur v. BIA, 413 F.3d 232, 234 (2d
20 Cir. 2005) (finding no abuse of discretion in BIA’s ruling that
21 evidence was immaterial and thus insufficient to warrant
5
1 reopening when it failed to rebut the underlying adverse
2 credibility determination).
3 Given the evidence of continued conditions, the BIA
4 reasonably concluded that Pan did not establish a material
5 change in the conditions for Christians in China. Accordingly,
6 the BIA did not abuse its discretion in denying Pan’s motion
7 to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C);
8 8 C.F.R. § 1003.2(c)(2).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of removal
11 that the Court previously granted in this petition is VACATED,
12 and any pending motion for a stay of removal in this petition
13 is DISMISSED as moot. Any pending request for oral argument
14 in this petition is DENIED in accordance with Federal Rule of
15 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
16 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
6