Xiao Fang Hu v. Sessions

16-399
Hu v. Sessions
BIA
A096 253 175

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 24th day of April, two thousand seventeen.
5
6 PRESENT:
7 REENA RAGGI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XIAO FANG HU,
14 Petitioner,
15
16 v. 16-399
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Richard Tarzia, Belle Mead, New
25 Jersey.
26

 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 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
2 Assistant Attorney General; Anthony
3 P. Nicastro, Assistant Director;
4 Drew C. Brinkman, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review is

12 DENIED.

13 Petitioner Xiao Fang Hu, a native and citizen of China,

14 seeks review of a January 19, 2016, decision of the BIA denying

15 her motion to reopen. In re Xiao Fang Hu, No. A096 253 175

16 (B.I.A. Jan. 19, 2016). We assume the parties’ familiarity

17 with the underlying facts and procedural history in this case.

18 “We review the denial of motions to reopen immigration

19 proceedings for abuse of discretion, mindful that motions to

20 reopen ‘are disfavored.[’]” Ali v. Gonzales, 448 F.3d 515, 517

21 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 323

22 (1992)). When the BIA considers relevant evidence of country

23 conditions in evaluating a motion to reopen, we review the BIA’s

24 factual findings under the substantial evidence standard.

25 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

2
1 An alien seeking to reopen proceedings may file one motion

2 to reopen no later than 90 days after the date on which the final

3 administrative decision was rendered. 8 U.S.C.

4 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is

5 undisputed that Hu’s motion to reopen was untimely because it

6 was filed more than eleven years after her order of removal

7 became final. See 8 U.S.C. § 1101(a)(47)(B)(i). However, the

8 time limitation does not apply if the motion requests reopening

9 to apply for asylum and “is based on changed country conditions

10 arising in the country of nationality or the country to which

11 removal has been ordered, if such evidence is material and was

12 not available and would not have been discovered or presented

13 at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);

14 see also 8 C.F.R. § 1003.2(c)(3).

15 Substantial evidence supports the BIA’s finding that Hu

16 failed to establish a material change in conditions for

17 underground Christians in China since her 2003 hearing. See

18 In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In

19 determining whether evidence accompanying a motion to reopen

20 demonstrates a material change in country conditions that would

21 justify reopening, [the BIA] compare[s] the evidence of country

22 conditions submitted with the motion to those that existed at
3
1 the time of the merits hearing below.”); see also Xiao Ji Chen

2 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

3 (holding that the weight accorded to evidence lies largely

4 within the discretion of the agency). For example, the 2013

5 U.S. Department of State International Religious Freedom Report

6 provides that China has been designated as a County of

7 Particular Concern under the International Religious Freedom

8 Act since 1999, “for particularly severe violations of

9 religious freedom,” and that China’s “respect for religious

10 freedom overall remained low during [2013].” A.R. 1145, 1148.

11 And while the 2014 China Aid Report and several news articles

12 describe instances of harassment in Hu’s home province of

13 Zhejiang in 2014 and 2015, the BIA correctly observed that even

14 a worsening recent trend over the last several years does not

15 necessarily represent a material change when compared to the

16 conditions that existed at the time of the 2003 merits hearing.

17 See In re S-Y-G-, 24 I. & N. Dec. at 253; Jian Hui Shao, 546

18 F.3d at 171 (observing that the task of resolving conflicts in

19 the country conditions evidence lies “largely within the

20 discretion of the agency”). Because substantial evidence

21 supports the agency’s finding that Hu did not show a material

22 change in conditions since 2003, the BIA did not abuse its
4
1 discretion in denying her motion to reopen as untimely. See

2 8 U.S.C. § 1229a(c)(7)(C); Jian Hui Shao, 546 F.3d at 169; Ali,

3 448 F.3d at 517.

4 Lastly, Hu’s assertion that the BIA failed to consider her

5 evidence is without merit. Although the BIA did not

6 specifically discuss all of Hu’s evidence, it need not

7 “expressly parse or refute on the record each individual

8 argument or piece of evidence offered by the petitioner,” Wei

9 Guang Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 275 (2d

10 Cir. 2006) (internal quotation marks omitted), and “[w]e

11 presume that [the BIA] has taken into account all of the evidence

12 before [it], unless the record compellingly suggests

13 otherwise.” Xiao Ji Chen, 471 F.3d at 336 n.17. Here, the BIA

14 acknowledged that reports providing statistics for only the

15 last few years may be useful in establishing a recent trend;

16 however, as noted above, the BIA correctly concluded that a

17 worsening trend over the last several years does not necessarily

18 equate to a material change in conditions since Hu’s 2003 merits

19 hearing. See In re S-Y-G-, 24 I. & N. Dec. at 253. The agency

20 credited Hu’s evidence, but reasonably found that it did not

21 show a material change in conditions. The record therefore

22 does not compellingly suggest that Hu’s evidence was ignored.
5
1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of removal

3 that the Court previously granted in this petition is VACATED,

4 and any pending motion for a stay of removal in this petition

5 is DENIED as moot. Any pending request for oral argument in

6 this petition is DENIED in accordance with Federal Rule of

7 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

8 34.1(b).

9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk of Court

6