Filed: Jan. 19, 2018
Latest Update: Mar. 03, 2020
Summary: 16-3197 Xu v. Sessions BIA Gordon-Uruakpa, IJ A016 087 178 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
Summary: 16-3197 Xu v. Sessions BIA Gordon-Uruakpa, IJ A016 087 178 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 T..
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16-3197
Xu v. Sessions
BIA
Gordon-Uruakpa, IJ
A016 087 178
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 19th day of January, two thousand eighteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 GUIDO CALABRESI,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 TING XU,
14 Petitioner,
15
16 v. 16-3197
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Scott Eric Bratton, Cleveland,
24 OH.
25
26 FOR RESPONDENT: Chad A. Readler, Acting Assistant
27 Attorney General; Anthony C.
28 Payne, Assistant Director;
29 Kathleen Kelly Volkert, Attorney,
30 Office of Immigration Litigation,
31
1 United States Department of
2 Justice, Washington, DC.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Ting Xu, a native and citizen of China,
9 seeks review of an August 18, 2016, decision of the BIA
10 affirming a February 12, 2015, decision of an Immigration
11 Judge (“IJ”) denying Xu’s motion to reopen his removal
12 proceedings. In re Ting Xu, No. A 016 087 178 (B.I.A. Aug.
13 18, 2016), aff’g No. A 016 087 178 (Immig. Ct. N.Y. City
14 Feb. 12, 2015). We assume the parties’ familiarity with
15 the underlying facts and procedural history in this case.
16 In lieu of filing a brief, the Government moves for
17 summary denial of Xu’s petition for review. Summary denial
18 is warranted only if a petition is frivolous, Pillay v.
19 INS, 45 F.3d 14, 17 (2d Cir. 1995), and Xu has filed his
20 merits brief. Accordingly, we treat the Government’s
21 motion as a response to that brief, and deny the petition
22 on the merits.
2
1 We review the BIA’s denial of Xu’s motion to reopen for
2 abuse of discretion, and review the BIA’s factual findings
3 regarding country conditions under the substantial evidence
4 standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d
5 Cir. 2008).
6 It is undisputed that Xu’s 2014 motion to reopen was
7 untimely because the final administrative decision was
8 issued in 2008. See 8 U.S.C. § 1229a(c)(7)(C)(i)(setting
9 90-day filing period for motions to reopen); 8 C.F.R.
10 §§ 1003.2(c)(2), 1003.23(b)(1) (same). Although this time
11 limitation does not apply if the motion is filed to apply
12 for asylum “based on changed country conditions” since the
13 time of the original hearing, 8 U.S.C.
14 § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii),
15 1003.23(b)(4)(i), as discussed below, the BIA’s conclusion
16 that Xu failed to establish such a change is supported by
17 substantial evidence, see Jian Hui
Shao, 546 F.3d at 169.
18 The BIA reasonably concluded that Xu did not establish a
19 material change in conditions in China. Xu’s conversion to
20 Christianity in 2012 was a change in his personal
21 circumstances, not a change in country conditions that could
22 excuse the time limitation on his motion to reopen. See Wei
3
1 Guang Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 273-
2 74 (2d Cir. 2006). His new evidence discussed isolated
3 incidents of persecution in China, which do not equate to a
4 change in conditions, particularly given that the evidence
5 showed similar conditions at the time of his hearing. In re
6 S-Y-G-, 24 I. & N. Dec. 247, 257 (B.I.A. 2007) (“Change that
7 is incremental or incidental does not meet the regulatory
8 requirements for late motions of this type.”). Further, none
9 of the evidence Xu submitted concerned his home province of
10 Jilin. See Jian Hui
Shao, 546 F.3d at 158-59, 163-65
11 (explaining that where policies vary by region, a movant has
12 the burden of showing conditions in his home province).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of removal
15 that the Court previously granted in this petition is VACATED,
16 and any pending motion for a stay of removal in this petition
17 is DISMISSED as moot. Any pending request for oral argument
18 in this petition is DENIED in accordance with Federal Rule of
19 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
20 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
4
