Chang Yang v. Lynch

15-155
Yang v. Lynch
BIA
A098 492 278
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 2nd day of December, two thousand fifteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 PETER W. HALL,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 CHANG YANG,
15 Petitioner,
16
17 v. 15-155
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: John Chang, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Blair T.
28 O’Connor, Assistant Director; John
29 F. Stanton, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 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 Chang Yang, a native and citizen of the People’s
6 Republic of China, seeks review of a December 31, 2014, decision
7 of the BIA denying her untimely motion to reopen proceedings.
8 In re Chang Yang, No. A098 492 278 (B.I.A. Dec. 31, 2014). 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 An alien seeking to reopen proceedings may file a motion
18 to reopen no later than 90 days after the final administrative
19 decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
20 § 1003.2(c)(2). Indisputably, Yang’s August 2014 motion was
21 untimely, as it was filed more than five years after the final
2
1 order of removal. This time limitation, however, does not
2 apply to a motion to reopen in order to apply for asylum if it
3 is “based on changed circumstances arising in the country of
4 nationality or in the country to which deportation has been
5 ordered, if such evidence is material and was not available and
6 could not have been discovered or presented at the previous
7 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
8 § 1229a(c)(7)(C)(ii). Substantial evidence supports the
9 BIA’s finding that Yang did not demonstrate changed
10 circumstances from the time of her 2007 hearing. See Jian Hui
11 Shao, 546 F.3d at 169; Matter of S-Y-G-, 24 I&N Dec. 247, 253
12 (B.I.A. 2007) (comparing conditions at the time of the hearing
13 with those at the time of the motion to reopen).
14 Yang argues that the BIA ignored the country conditions
15 evidence she submitted. Her argument is belied by the record:
16 the BIA cited the evidence Yang submitted and summarized its
17 relevant contents. See Zhi Yun Gao v. Mukasey, 508 F.3d 86,
18 87 (2d Cir. 2007) (the BIA is not required to “expressly parse
19 or refute on the record each individual argument or piece of
20 evidence” before it (internal quotation marks omitted)); Xiao
21 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
3
1 Cir. 2006) (the agency is presumed to have “taken into account
2 all of the evidence before [it], unless the record compellingly
3 suggests otherwise”).
4 Further, the evidence in the record regarding the treatment
5 of members of unsanctioned Christian churches demonstrates that
6 the BIA’s determination that Yang failed to show a change in
7 country conditions is supported by substantial evidence. To
8 establish changed circumstances, Yang relies only on articles
9 about the Chinese government’s razing of a single
10 government-registered church in her home province in 2014.
11 Yang, however, claims to “believe only the Chinese underground
12 churches are real churches” and bases her fear of persecution
13 on her intent to join such a church when she returns to China.
14 J.A. 906. As for those churches, the very articles on which Yang
15 relies show that the churches “have been harassed for years.”
16 J.A. 961. This is supported by other record evidence showing
17 that, in 2007, repression of Christians in China occurred in
18 various regions and included threats, arrests, imprisonment,
19 physical abuse, and destruction of church property.
20 Accordingly, as substantial evidence supports the BIA’s
21 finding that Yang did not show changed country conditions, the
4
1 BIA did not abuse its discretion by denying her motion as
2 untimely. See Jian Hui Shao, 546 F.3d at 169. Because this
3 finding is dispositive, we do not consider Yang’s challenges
4 to the BIA’s additional determination that she did not show her
5 prima facie eligibility for relief. See INS v. Bagamasbad, 429
6 U.S. 24, 25 (1976).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk
5