Dong v. Barr

18-1805
Dong v. Barr
BIA
A087 651 012
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 8th day of September, two thousand twenty.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 JOSEPH F. BIANCO,
9 WILLIAM J. NARDINI,
10 Circuit Judges.
11 _____________________________________
12
13 XING FENG DONG,
14 Petitioner,
15
16 v. 18-1805
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: John Chang, Esq., New York, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Papu Sandhu, Assistant
27 Director; Matthew A. Connelly,
28 Senior Litigation Counsel, Office
29 of Immigration Litigation, United
1 States Department of Justice,
2 Washington, DC.
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED that the petition for review
6 is DENIED.
7 Petitioner Xing Feng Dong, a native and citizen of the
8 People’s Republic of China, seeks review of a June 7, 2018,
9 decision of the BIA affirming denying his motion to reopen
10 his removal proceedings. In re Xing Feng Dong, No. A 087 651
11 012 (B.I.A. Jun. 7, 2018). We assume the parties’
12 familiarity with the underlying facts and procedural history.
13 We have reviewed the BIA’s denial of the motion to reopen
14 for abuse of discretion and considered whether its conclusion
15 regarding changed country conditions is supported by
16 substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d
17 138, 168–69 (2d Cir. 2008).
18 Dong moved to reopen in order to apply for asylum,
19 withholding of removal, and relief under the Convention
20 Against Torture, asserting that he had converted to
21 Christianity in the United States and that worsening
22 conditions for Christians in China excused the untimely
2
1 filing of his motion. It is undisputed that Dong’s motion,
2 which was filed more than a year after the BIA’s 2016 decision
3 affirming his removal order, was untimely. See 8 U.S.C.
4 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). But the time
5 limitation for filing a motion to reopen does not apply if
6 reopening is sought to apply for asylum and the motion “is
7 based on changed country conditions arising in the country of
8 nationality or the country to which removal has been ordered,
9 if such evidence is material and was not available and would
10 not have been discovered or presented at the previous
11 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
12 C.F.R. § 1003.2(c)(3)(ii). The agency did not err in finding
13 that Dong failed to demonstrate such conditions.
14 Dong’s conversion to Christianity and active religious
15 practice constituted changes in personal circumstances that
16 did not excuse the applicable time limitation. See Li Yong
17 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.
18 2005). Accordingly, Dong had to show a material change in
19 conditions in China. And because conditions for Christians
20 in China vary by province, Dong had to establish a material
21 change relevant to his home province of Fujian. See Jian Hui
3
1 Shao, 546 F.3d at 149, 170 (When policies “vary widely from
2 one area of the country to another . . . it is appropriate to
3 review the evidence to determine, first, what policy applies
4 to the circumstances at issue and, second, whether local
5 officials would be inclined to view the petitioner’s actions
6 as a violation of that policy.”).
7 We find no error in the agency’s conclusion that Dong
8 failed to show a material change. “In determining whether
9 evidence accompanying a motion to reopen demonstrates a
10 material change in country conditions that would justify
11 reopening, [the agency] compare[s] the evidence of country
12 conditions submitted with the motion to those that existed at
13 the time of the merits hearing below.” In re S-Y-G-, 24 I.
14 & N. Dec. 247, 253 (BIA 2007). Dong did not submit any
15 evidence of the conditions for Christians at the time of his
16 2014 hearing before the IJ, and only one of his articles on
17 conditions at the time he filed his motion was particular to
18 Fujian Province. Because regulation and suppression of
19 various religious groups by the government has been a
20 longstanding problem in China, and because Dong’s evidence
21 was not specific to his area of China, the BIA reasonably
4
1 concluded that he failed to establish the changed conditions
2 necessary to excuse his untimely filing. See Jian Hui Shao,
3 546 F.3d at 171. The BIA therefore did not abuse its
4 discretion in denying Dong’s motion to reopen as untimely.
5 See 8 U.S.C. § 1229a(c)(7)(C).
6 The timeliness finding is dispositive, and we need not
7 reach the alternate ruling that Dong failed to establish prima
8 facie eligibility for relief. See INS v. Abudu, 485 U.S. 94,
9 104–05 (1988) (observing that the agency may deny untimely
10 motion for failure to demonstrate changed country conditions
11 or prima facie eligibility for the underlying relief); INS v.
12 Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts
13 and agencies are not required to make findings on issues the
14 decision of which is unnecessary to the results they reach.”).
15 Regardless, Dong’s claim of prima facie eligibility for
16 asylum fails largely for the reasons discussed above: the
17 lack of evidence of persecution in Fujian province prevents
18 him from demonstrating an objectively reasonable fear of
19 persecution. See Poradisova v. Gonzales, 420 F.3d 70, 78 (2d
20 Cir. 2005) (providing that prima facie standard requires
21 applicant to show a “realistic chance” that he will be able
5
1 to establish eligibility for relief); Jian Xing Huang v. U.S.
2 INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that “[i]n the
3 absence of solid support in the record” and alien’s “fear is
4 speculative at best”).
5 For the foregoing reasons, the petition for review is
6 DENIED. All pending motions and applications are DENIED and
7 stays VACATED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe,
10 Clerk of Court
6