Filed: Jul. 11, 2018
Latest Update: Mar. 03, 2020
Summary: 10-4328 (L) Gao v. Sessions BIA A095 710 413 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: 10-4328 (L) Gao v. Sessions BIA A095 710 413 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 “S..
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10-4328 (L)
Gao v. Sessions
BIA
A095 710 413
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 July, two thousand eighteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROSEMARY S. POOLER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 MEI MI GAO,
14 Petitioner,
15
16 v. 10-4328 (L),
17 16-3314 (Con)
18 NAC
19 JEFFERSON B. SESSIONS, III,
20 UNITED STATES ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, NY.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Jeffery R.
28 Leist, Senior Litigation Counsel;
29 Craig A. Newell, Jr., Trial
30 Attorney Office of Immigration
1 Litigation, United States
2 Department of Justice, Washington,
3 DC.
4
5 UPON DUE CONSIDERATION of these petitions for review of
6 decisions of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
8 review are DENIED.
9 Petitioner Mei Mi Gao, a native and citizen of the
10 People’s Republic of China, seeks review of August 31, 2016,
11 and September 30, 2010, decisions of the BIA denying her
12 motions to reopen her removal proceedings to apply for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Mei Mi Gao, No. A095 710 413
15 (B.I.A. Aug. 31, 2016, Sept. 30, 2010). We assume the
16 parties’ familiarity with the underlying facts and procedural
17 history in this case.
18 We have reviewed the BIA’s denial of Gao’s motions to
19 reopen for abuse of discretion, and the BIA’s factual findings
20 regarding country conditions under the substantial evidence
21 standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d
22 Cir. 2008); Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006).
2
1 It is undisputed that both of Gao’s 2010 and 2016 motions
2 to reopen were untimely, and that her second motion was number
3 barred. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
4 § 1003.2(c)(2). Although these limitations do not apply to
5 motions to reopen in order to seek asylum “based on changed
6 country conditions” since the time of the original hearing,
7 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii),
8 the BIA reasonably concluded that Gao did not establish any
9 material change in conditions in China.
10 I. 2010 Motion to Reopen
11 The BIA correctly held that the birth of Gao’s son in
12 2010 was a change in personal circumstances, not a change in
13 country conditions that could excuse the time limitation on
14 her motion to reopen. See Wei Guang Wang v. Bd. of
15 Immigration Appeals, 437 F.3d 270, 273-74 (2d Cir. 2006).
16 Gao’s motion did not allege any change in China’s family
17 planning policy or provide country conditions evidence from
18 either 2007 or 2010. Given this lack of evidence, the BIA
19 did not abuse its discretion in denying Gao’s 2010 motion.
20
21
3
1 II. 2016 Motion to Reopen
2 Like the birth of her son, Gao’s conversion to
3 Christianity in 2015 was a change in personal circumstances.
4 See Wei Guang Wang, 437 F.3d at 273-74. While Gao asserted
5 that China’s treatment of Christians had materially worsened
6 since 2007, the BIA considered the evidence Gao submitted and
7 reasonably determined that China’s harassment of Christians
8 who attend underground churches was a “longstanding concern”
9 that existed at the time of Gao’s 2007 merits hearing and
10 that Gao’s evidence did not show a material change in
11 conditions for Christians. See In re S-Y-G-, 24 I. & N. Dec.
12 247, 253 (B.I.A. 2007) (“In determining whether evidence
13 accompanying a motion to reopen demonstrates a material
14 change in country conditions that would justify reopening,
15 [the agency] compare[s] the evidence of country conditions
16 submitted with the motion to those that existed at the time
17 of the merits hearing below.”). As the BIA concluded, Gao’s
18 evidence showed a continuation of former conditions. Gao
19 pointed out that the Chinese government has exerted strict
20 ideological control over state-sanctioned religious groups
21 since 1998. Certified Administrative Record (“CAR”) at 57.
4
1 She cited “new” regulations over religious affairs, but those
2 regulations went into effect in 2004 and 2005, before her
3 2007 hearing, and “merely codif[ied] past practices.” Id.
4 at 14 (quoting 2006 State Dep’t Report). She cited excerpts
5 from State Department reports published between 2007 and
6 2015, attempting to show escalating mistreatment of
7 Christians, but even these excerpts reference “continuing”
8 mistreatment of Christians.
Id. at 15 (2009 report that “the
9 Government continued to strictly control religious practice
10 . . . ”), 16 (2010 report that “officials continued to
11 scrutinize and . . . harass registered and unregistered
12 religious and spiritual groups”), 21 (2013 report that
13 “[r]eports continued to emerge . . . regarding state-
14 sanctioned raids on house churches” and “[m]embers of house
15 church congregations in particular remained subject to
16 official harassment and mistreatment”), 22 (2015 report that
17 “the government and Party continued to call on officials and
18 religious groups to ensure that religious doctrine and
19 practices adhered to government policy and Party goals”).
20 Gao argues that the BIA ignored the reports’ descriptions
21 of deteriorating conditions for Christians; but she does not
5
1 point to any specific evidence that was overlooked. See Xiao
2 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d
3 Cir. 2006) (“[W]e presume that the agency has taken into
4 account all of the evidence before [it], unless the record
5 compellingly suggests otherwise.”); Wei Guang Wang,
437 F.3d
6 at 275 (holding that BIA need not “expressly parse or refute
7 on the record each . . . piece of evidence offered by the
8 petitioner.” (quotation marks omitted)). She also argues
9 that the BIA should have taken administrative notice of the
10 2006 State Department report, but it was her burden to submit
11 evidence establishing that country conditions have changed.
12 See 8 U.S.C. § 1229a(7)(B); Yuen Jin v. Mukasey,
538 F.3d
13 143, 151-52, 160 (2d Cir. 2008).
14 Given Gao’s failure to establish a material change in
15 country conditions, the BIA did not abuse its discretion in
16 denying her motions to reopen as untimely and number barred.
17 See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).
18 Because the BIA’s time and number rulings are dispositive, we
19 do not reach the BIA’s alternative holding regarding Gao’s
20 prima facie eligibility for asylum. INS v. Bagamasbad, 429
21 U.S. 24, 25 (1976).
6
1 For the foregoing reasons, the petitions for review are
2 DENIED. As we have completed our review, Gao’s stay motion
3 is DISMISSED as moot. Any pending request for oral argument
4 in these petitions is DENIED in accordance with Federal Rule
5 of Appellate Procedure 34(a)(2), and Second Circuit Local
6 Rule 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe,
9 Clerk of Court
7
