10-979-ag
    Xia v. Holder
                                                                                  BIA
                                                                              Chew, IJ
                                                                          A089 254 386
                     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 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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 1st day of March, two thousand eleven.

    PRESENT:
             ROGER J. MINER,
             BARRINGTON D. PARKER,
             PETER W. HALL,
                    Circuit Judges.
    _______________________________________

    MEIZHEN XIA
             Petitioner,

                    v.                                     10-979-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Gary J. Yerman, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Anthony P. Nicastro, Senior
                                  Litigation Counsel; Bernard A.
                                  Joseph, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
     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.

     Meizhen Xia, a native and citizen of the People’s
Republic of China, seeks review of a March 9, 2010 order of
the BIA denying Xia’s motion to remand and affirming the
December 19, 2008 decision of Immigration Judge (“IJ”)
George T. Chew, which pretermitted her application for
asylum as untimely and denied her application for
withholding of removal and relief under the Convention
Against Torture (“CAT”). In re Meizhen Xia, No. A089 254
386 (B.I.A. Mar. 9, 2010), aff’g No. A089 254 386 (Immig.
Ct. N.Y. City Dec. 19, 2008). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.

     Under the circumstances of this case, we review the
IJ’s decision as supplemented by the BIA’s decision. See
Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B)(2006); see also Manzur v. U.S.
Dep’t of Homeland Sec., 

, 289 (2d Cir. 2007); Li
Yong Cao v. U.S. Dep’t of Justice, 

, 156 (2d
Cir. 2005).

I.   Pretermission of Asylum Application as Untimely

     Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to
review the agency’s finding that an asylum application was
untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of
neither changed nor extraordinary circumstances excusing the
untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding
that provision, we retain jurisdiction to review
constitutional claims and “questions of law.” 8 U.S.C. §
1252(a)(2)(D). We therefore consider Xia’s argument that
the agency applied the wrong legal standard in pretermitting
her asylum application because it raises a question of law.
See Ilyas Khan v. Gonzales, 

, 35 (2d Cir. 2007).

     In this case, the IJ erroneously determined that
changed personal circumstances could not be grounds for
excusing the untimely filing of an asylum application.

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Consequently, the IJ erred in pretermitting Xia’s asylum
application based on her failure to demonstrate that
extraordinary circumstances prevented her from filing her
asylum application within one year of her entry. It is
well-established that changed circumstances material to an
applicant’s eligibility for asylum may excuse the untimely
filing of an asylum application. See 8 U.S.C.
§ 1158(a)(2)(D) (requiring applicants who file their asylum
application more than one year after their entry into the
country to demonstrate “either the existence of changed
circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within” one
year of entry); see also 8 C.F.R. § 1208.4(a)(4)(i)(2011)
(explaining that “changed circumstances” include, inter
alia, “[c]hanges in the applicant’s circumstances that
materially affect the applicant’s eligibility for asylum,
including . . . activities the applicant becomes involved in
outside the country of feared persecution that place the
applicant at risk”). Here, Xia’s asserted changed personal
circumstances—namely her conversion to Christianity and her
pregnancy with her second child—are materially relevant to
her asylum eligibility, and it was legal error to rule that
Xia’s untimely filing could not be excused on the basis of
such circumstances. That said, remand would be futile
because both the IJ and the BIA thoroughly analyzed whether
Xia had established a well-founded fear of persecution and,
as discussed infra, reasonably determined that she had not.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 339
(2d Cir. 2006) (explaining that “[t]he overarching test for
deeming a remand futile” is whether “the reviewing court can
‘confidently predict’ that the agency would reach the same
decision absent the errors that were made”); see also Cao He
Lin v. U.S. Dep’t of Justice, 

, 401 (2d Cir.
2005).




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II. Application for Relief

    A.   Family Planning Claim

     Xia’s arguments regarding her eligibility for relief
based on the birth of her two U.S.-citizen children are
largely foreclosed by our decision in Jian Hui Shao v.
Mukasey, 

, 157-67 (2d Cir. 2008), which found,
under evidence similar to that submitted here, no error in
the agency’s conclusion that such evidence was insufficient
to establish a well-founded fear of persecution, 

57. Contrary to Xia’s argument, a reasonable fact-finder
would not be compelled to conclude that the agency ignored
any material evidence in the record. See 

(recognizing that the Court has rejected the notion that the
agency must “expressly parse or refute on the record each
individual argument or piece of evidence offered by the
petitioner” (internal quotation marks omitted)); see also
Xiao Ji 

n.17 (2d Cir. 2006) (presuming
that the agency “has taken into account all of the evidence
before [it], unless the record compellingly suggests
otherwise”). Moreover, the agency did not err in finding
that the letters and statements Xia submitted were not
material to her claimed fear of future persecution because
they did not detail the forced sterilizations of similarly
situated individuals—namely, those who gave birth to two
children in the United States. See Jian Hui 

. Substantial evidence thus supports the agency’s
determination that Xia failed to demonstrate a well-founded
fear of persecution in China based on the birth of her two
U.S.-citizen children. The agency reasonably denied her
application for relief based on this claim. See 

67; see also Paul v. Gonzales, 

, 155-57 (2d Cir.
2006) (finding that an IJ’s denial of asylum necessarily
precludes the success of an alien’s withholding of removal
and CAT claims where those claims are based on the same
factual predicate as an the asylum claim).

    B.   Christianity Claim

     We find no error in the agency’s determination that Xia
failed to demonstrate her eligibility for relief based on
her practice of Christianity. See 8 C.F.R. §§ 208.13(b)(2),
208.16(b)(2), (c)(2)(2011). Indeed, the U.S. State

                              4
Department’s 2006 Country Report for China as well as the
2007 Religious Freedom Report for China support the IJ’s
determination that, although the background evidence
demonstrated that the Chinese government has engaged in the
persecution of Christians, such persecution has not occurred
throughout the country. Moreover, we find no error in the
IJ’s determination that Xia failed to demonstrate that
officials in China were aware of her Christian beliefs or
that they would inflict harm on her rising to the level of
persecution on account of those beliefs. See Hongsheng Leng
v. Mukasey, 

, 142-43 (2d Cir. 2008). Substantial
evidence supports the agency’s finding that Xia failed to
demonstrate a well-founded fear of persecution based on her
Christian beliefs and activities, and the agency reasonably
denied her application based on that claim. See id.; see
also 

.

III.   Motion to Remand

     Xia argues that the BIA’s denial of her motion to
remand was legally erroneous because the sole ground upon
which the BIA relied was Xia’s failure to provide her own
affidavit in support of the motion. The record does not
support this argument.

     The BIA is without jurisdiction to consider new
evidence not in the record before the IJ. A party wishing
to present new evidence in support of her claim must file a
motion to remand. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party
asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion to remand.”).
A motion to remand that relies on new evidence is held to
the substantive standard of a motion to reopen. See Li Yong

. The agency may deny a motion to
remand or reopen when a prima facie case for the relief
sought is not established. INS v. Abudu, 

, 104
(1988); see also Matter of Coelho, 20 I. & N. Dec. 464, 472
(B.I.A. 1992).

     The BIA did not abuse its discretion in denying Xia’s
motion to remand. It reasonably determined that Jin Fu
Chen’s statement failed to establish Xia’s prima facie
eligibility for relief because Chen was not similarly
situated to Xia insofar as his purportedly forced
sterilization occurred seven years prior to Xia’s motion to
                             5
remand, his children were from Japan and not the United
States, and he voluntarily registered his children in his
household registry. See Jian Hui 

.

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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