17-1
Ou v. Sessions
BIA
A070 886 882
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 7th day of June,two thousand eighteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 GUO QIN OU,
14 Petitioner,
15
16 v. 17-1
17 NAC
18 JEFFERSON B. SESSIONS III,
19 UNITED STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Chad A. Readler, Acting Assistant
26 Attorney General; Anthony C.
27 Payne, Assistant Director;
28 Kathleen Kelly Volkert, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 DC.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Guo Qin Ou, a native and citizen of the
11 People’s Republic of China, seeks review of a December 6,
12 2016, decision of the BIA denying his motion to reopen. In
13 re Guo Qin Ou, No. A 070 886 882 (B.I.A. Dec. 6, 2016). We
14 assume the parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 In lieu of filing a brief, the Government moves for
17 summary denial of Ou’s petition for review. Summary denial
18 is warranted only if a petition is frivolous, Pillay v. INS,
19 45 F.3d 15, 17 (2d Cir. 1995), and Ou has filed his merits
20 brief. Accordingly, we treat the Government’s motion as a
21 response to that brief, and deny the petition.
22 We review the BIA’s denial of Ou’s motion to reopen for
23 abuse of discretion, and review the BIA’s factual findings
2
1 regarding country conditions under the substantial evidence
2 standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d
3 Cir. 2008).
4 It is undisputed that Ou’s 2016 motion to reopen was
5 untimely because his removal order became final in 2002. See
6 8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for
7 motions to reopen); 8 C.F.R. § 1003.2(c)(2)(same). Although
8 this time limitation does not apply if the motion is filed to
9 apply for asylum “based on changed country conditions” since
10 the time of the original hearing, 8 U.S.C.
11 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), as
12 discussed below, the BIA’s conclusion that Ou failed to
13 establish such a change is supported by substantial evidence.
14 See Jian Hui Shao, 546 F.3d at 169.
15 The BIA reasonably concluded that Ou did not establish
16 a material change in country conditions, given that Ou’s
17 evidence revealed that the Chinese government has
18 continuously repressed Christians, especially members of
19 unregistered churches, since before 1998, with varying
20 degrees of restriction from region to region. In re S-Y-G-,
21 24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether
3
1 evidence accompanying a motion to reopen demonstrates a
2 material change in country conditions that would justify
3 reopening, [the BIA] compare[s] the evidence of country
4 conditions submitted with the motion to those that existed at
5 the time of the merits hearing below.”). Ou’s argument that
6 the BIA failed to consider evidence of increased persecution
7 is without merit given that the BIA extensively cited Ou’s
8 submissions, which demonstrated that although there were some
9 instances of increased persecution of Christians, conditions
10 varied widely by region. Further, Ou’s evidence notably
11 lacked any indication of a deterioration of conditions for
12 Christians in Fujian Province, Ou’s home region. See Jian
13 Hui Shao, 546 F.3d at 149-50, 165-66 (upholding BIA’s
14 conclusion that when fear of persecution is based on
15 enforcement of a policy that varies by region, it is the
16 applicant’s burden to show enforcement of the policy in his
17 or her home region).
18 Given the evidence of a continuation of conditions, the
19 BIA did not abuse its discretion in denying Ou’s motion to
20 reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.
21 § 1003.2(c)(2).
4
1 Because the BIA’s timeliness ruling is dispositive, we
2 do not reach the BIA’s alternative holding regarding Ou’s
3 prima facie eligibility for asylum. 8 U.S.C.
4 § 1229a(c)(7)(C)(i); INS v. Bagamasbad, 429 U.S. 24, 25
5 (1976).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, the motions for a
8 stay of removal and summary denial are DENIED. Any pending
9 request for oral argument in this petition is DENIED in
10 accordance with Federal Rule of Appellate Procedure 34(a)(2),
11 and Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe,
14 Clerk of Court
5