14-256 (L)
Xia v. Sessions
BIA
Videla, IJ
A075 981 406
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 9th day of May, two thousand seventeen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROSEMARY S. POOLER,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO YAN XIA,
14 Petitioner,
15 14-256(L),
16 v. 15-4129(CON)
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General;
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Jefferson B. Sessions III is automatically substituted for former Attorney
General Loretta E. Lynch as Respondent.
1 Michelle G. Latour, Deputy Director;
2 Victor M. Lawrence, Senior
3 Litigation Counsel, Office of
4 Immigration Litigation, United
5 States Department of Justice,
6 Washington, DC.
7
8 UPON DUE CONSIDERATION of these petitions for review of two
9 Board of Immigration Appeals (“BIA”) decisions, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petitions for review
11 are DENIED.
12 Petitioner Xiao Yan Xia, a native and citizen of the
13 People’s Republic of China, seeks review of (1) a January 6,
14 2014, decision of the BIA, affirming a September 19, 2012,
15 decision of an Immigration Judge (“IJ”) denying Xia’s first
16 motion to reopen, In re Xiao Yan Xia, No. A075 981 406 (B.I.A.
17 Jan. 6, 2014), aff’g No. A075 981 406 (Immig. Ct. N.Y. City Sept.
18 19, 2012), and (2) a December 11, 2015, decision of the BIA
19 denying her second motion to reopen, In re Xiao Yan Xia, No.
20 A075 981 406 (B.I.A. Dec. 11, 2015). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 We have reviewed both the IJ’s and the BIA’s decisions “for
24 the sake of completeness.” Wangchuck v. Dep’t of Homeland
25 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
2
1 standards of review are well established. See Jian Hui Shao
2 v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
3 It is undisputed that Xia’s motions to reopen were untimely
4 filed more than 13 years after the IJ’s removal order became
5 final, and that her second motion was number barred. See
6 8 U.S.C. § 1229a(c)(7)(A), (c)(7) (C)(i); 8 C.F.R.
7 §§ 1003.2(c)(2), 1003.23(b)(1). These time and number
8 limitations do not apply, however, if the motion is to reopen
9 in order to apply for asylum and “is based on changed country
10 conditions arising in the country of nationality or the country
11 to which removal has been ordered, if such evidence is material
12 and was not available and would not have been discovered or
13 presented at the previous proceeding.” 8 U.S.C.
14 § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
15 §§ 1003.2(c)(3), 1003.23(b)(4)(i). “In determining whether
16 evidence accompanying a motion to reopen demonstrates a
17 material change in country conditions that would justify
18 reopening, [the BIA] compare[s] the evidence of country
19 conditions submitted with the motion to those that existed at
20 the time of the merits hearing below.” In re S-Y-G-, 24 I. &
21 N. Dec. 247, 253 (B.I.A. 2007). The BIA did not err in finding
22 that Xia failed to demonstrate such conditions.
3
1 While the 2014 Annual Report of the China Aid Association
2 states that “Christians and practitioners of other faiths in
3 China experienced the harshest persecution seen in over a
4 decade,” China Aid, 2014 Annual Report Religious and Human
5 Rights Persecution in China 1 (Jan.-Dec. 2014), available at
6 http://www.chinaaid.org/2015/04/china-aid-2014-annual-repor
7 t-indicates.html, that report and the other record evidence do
8 not demonstrate a material change in conditions since the time
9 of Xia’s hearing in 1998. See In re S-Y-G-, 24 I. & N. Dec.
10 at 253. Rather, the country conditions evidence from 1998 and
11 that from the time of Xia’s motions describe the following
12 similar conditions related to the government’s treatment of
13 unregistered religious groups: demolition of unregistered
14 churches; removal of crosses from buildings; detention of
15 unregistered church leaders; criminal or administrative
16 penalties for unregistered church practitioners; and
17 variations in government interference depending on location.
18 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re S-Y-G-, 24
19 I. & N. Dec. at 257 (“Change that is incremental or incidental
20 does not meet the regulatory requirements for late motions of
21 this type.”).
4
1 Xia argues that the BIA erred in declining to credit two
2 letters from her family friends, both of whom claimed to have
3 been persecuted for worshiping in an unregistered church in
4 China and asserted that Xia would face a similar fate should
5 she return. However, the BIA did not abuse its discretion in
6 declining to credit the letters because they were unsworn and
7 created for the purpose of supporting Xia’s case. See Y.C. v.
8 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s
9 decision to afford little weight to husband’s letter because
10 letter was unsworn and submitted by an interested witness); see
11 also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 (B.I.A.
12 2010) (affording minimal weight to documents obtained solely
13 for removal proceedings by witnesses not subject to
14 cross-examination), rev’d on other grounds by Hui Lin Huang v.
15 Holder, 677 F.3d 130 (2d Cir. 2012).
16 Accordingly, because Xia failed to demonstrate material
17 changed country conditions in China, the agency did not abuse
18 its discretion in denying her motions to reopen as untimely.
19 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §§ 1003.2(c),
20 1003.23(b).
21 For the foregoing reasons, these petitions for review are
22 DENIED. As we have completed our review, any stay of removal
5
1 that the Court previously granted in these petitions is VACATED,
2 and any pending motion for a stay of removal in these petitions
3 is DISMISSED as moot. Any pending request for oral argument
4 in these petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
6