Ji Xue He v. Sessions

16-2136
He v. Sessions
BIA
A073 563 755

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.

At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
13th day of July, two thousand seventeen.

PRESENT:
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________

JI XUE HE,
Petitioner,

v. 16-2136
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________

FOR PETITIONER: David M. Haghighi, Los Angeles, CA.

FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Jessica E. Burns,
Assistant Director; John F. Stanton,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, DC.
 UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

Petitioner Ji Xue He, a native and citizen of the People’s

Republic of China, seeks review of a May 25, 2016, decision of

the BIA denying his motion to reopen. In re Ji Xue He, No. A073

563 755 (B.I.A. May 25, 2016). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

The applicable standards of review are well established.

See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

2008). He’s original asylum application, which an IJ denied

in 1997, was based on his violation of China’s family planning

policies. Although He’s deportation became final in 1998, he

remained in the United States. In his motion to reopen, He

asserted that he converted to Christianity in 2015 and that

conditions for Christians have worsened in China since his

deportation order became final in 1998. He claims that the

worsened conditions excuse the untimely filing of his motion

and demonstrate his prima facie eligibility for asylum,

withholding of removal, and relief under the Convention Against

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Torture (“CAT”) based on his recent conversion to Christianity

in the United States. It is undisputed that He’s 2016 motion

to reopen was untimely, since it was filed more than 17 years

after his deportation order became final in 1998. See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The 90-day

time limit for filing a motion to reopen does not apply, however,

if reopening is sought to apply for asylum and the motion “is

based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered,

if such evidence is material and was not available and would

not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3). The BIA did not err in finding that He failed

to satisfy those requirements.

“In determining whether evidence accompanying a motion to

reopen demonstrates a material change in country conditions

that would justify reopening, [the BIA] compare[s] the evidence

of country conditions submitted with the motion to those that

existed at the time of the merits hearing below.” In re S-Y-G-,

24 I. & N. Dec. 247, 253 (B.I.A. 2007). As an initial matter,

we note that He’s conversion to Christianity in the United

States constitutes a change in his personal circumstances, not

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a change in China’s country conditions. Thus, the exception to

the 90-day rule in 8 C.F.R. § 1003.2(c)(3) does not apply.

Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130 (2d Cir. 2005).

In any event, as the BIA found, the U.S. Department of State

reports demonstrate that the Chinese government has viewed

unfavorably and mistreated unregistered Christian groups since

before He’s 1997 hearing. He’s evidence further demonstrates

that the treatment of unregistered religious groups varies

widely from region to region, and there is no record evidence

of increased persecution of such groups in He’s home province.

Cf. Jian Hui Shao, 546 F.3d at 142, 149 (finding no error in

the BIA’s requirement that an applicant demonstrate local

enforcement of a government policy in a manner that would give

rise to a well-founded fear of persecution when the country

conditions reflect local variations in enforcement).

Accordingly, because the BIA reasonably found that He did

not demonstrate a material change in conditions in China, it

did not abuse its discretion in denying his motion to reopen

as untimely. See 8 U.S.C. § 1229a(c)(7)(C). We do not reach

the BIA’s alternative basis for denying He’s motion, that he

failed to establish his prima facie eligibility for relief.

See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general

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rule courts and agencies are not required to make findings on

issues the decision of which is unnecessary to the results they

reach.”).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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