Xu v. Holder , 586 F. App'x 20 ( 2014 )

13-2257
Xu v. Holder
BIA
Burr, IJ
A072 764 210
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
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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 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 2nd day of October, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RICHARD C. WESLEY
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
WEN HUNG XU, a.k.a. WEN GUANG XU a.k.a.
WEN KUNG XU a.k.a. GEK SAN LOW,
Petitioner,
v. 13-2257
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Peter D. Lobel, Esq., New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director, Paul Fiorino,
Senior Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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.
Wen Hung Xu, a native and citizen of China, seeks
review of a May 9, 2013, decision of the BIA affirming the
October 4, 2011, decision of an Immigration Judge (“IJ”),
which denied his motion to reopen his 1994 exclusion
proceedings to permit him to apply for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”). In re Wen Hung Xu, No. A072 764 210 (B.I.A. May 9,
2013), aff’g No. A072 764 210 (Immig. Ct. N.Y.C. Oct. 4,
2011). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
the IJ’s decision as modified by the BIA. See Xue Hong Yang
v. U.S. Dep’t Justice, 426 F.3d 520, 522 (2d Cir. 2005). We
review motions to reopen for abuse of discretion, Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam), and
review determinations regarding changed country conditions
for substantial evidence, Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008). In order to reopen in absentia
exclusion proceedings, an alien must demonstrate either
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reasonable cause for his failure to appear at his hearing,
or a material change in country conditions to excuse the
relevant time limitation on motions to reopen. Twum v. INS,
411 F.3d 54, 58 n.2 (2d Cir. 2005). Xu has demonstrated
neither.
First, Xu has not demonstrated cause for his failure to
appear for a hearing in 1994: his brief does not address the
in absentia order or allege reasonable cause for failure to
appear. Second, he has not demonstrated any material change
in conditions warranting reopening of his proceedings. An
alien seeking to reopen proceedings in order to apply for
new relief is required to file a motion to reopen no later
than ninety days after the date on which the final
administrative decision was rendered. 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1). There is no
question that Xu’s 2011 motion to reopen was untimely
because the IJ issued the exclusion order in 1994. However,
the time and number limitations do not apply if the motion
is “based on changed country conditions arising in the
country of nationality . . . if such evidence is material
and was not available and would not have been discovered or
presented at the previous hearing.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4).
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Here, contrary to Xu’s contentions, the agency did not
ignore evidence of changed country conditions. Xu’s 2011
baptism into the Christian faith constitutes a changed
personal circumstance, which is insufficient to demonstrate
a change in country conditions. Wei Guang Wang v. BIA, 437
F.3d 270, 273-74 (2d Cir. 2006); Li Yong Zheng v. U.S. Dep’t
of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per
curiam).
Furthermore, the agency’s determination that Xu’s
evidence did not establish a change in the treatment of
Christians in China is supported by substantial evidence.
The evidence shows that the mistreatment was a continuation
of previous conditions. For example, the
Congressional-Executive Commission on China’s 2010 Annual
Report, upon which Xu relies in support of his changed
country conditions claim, states that “authorities continued
to harass and detain arbitrarily members of house churches
throughout China and interfere with their places of
worship,” and the State Department’s 2009 Human Rights
Report states that the “government continued to strictly
control religious practice,” “Government efforts to control
and regulate religious groups, particularly unregistered
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groups, continued,” and “[h]arassment of unregistered
Catholic bishops, priests, and lay persons continued.” In
his brief, Xu cites to an article that relies on a report by
the charity Christian Solidarity Worldwide for the
proposition that “[h]uman rights groups have documented an
increasing number of arrests of Chinese Christians since the
beginning of 2004 . . . especially in the provinces of
Zhejiang, Jiangsu and Hebe[i].” The article, however,
actually states:
Human rights groups have documented an increasing
number of arrests of Chinese Christians since the
beginning of 2004.
According to the charity Christian Solidarity
Worldwide, persecution is becoming more systematic
and targeted at large-scale Christian gatherings.
Since June [2004] the charity has documented three
mass arrests of unregistered Christians. In each
case more than 100 people were detained.
Amnesty international has reported many cases of
detained church leaders in recent years,
especially in the provinces of Zhejiang, Jiangsu
and Hebei.
Certified Administrative Record at 111 (article from
news.bbc.co.uk) (emphasis added to demonstrate alteration).
Accordingly, because the evidence supports the BIA’s
conclusion that there has not been a change and Xu has
pointed to no evidence calling the BIA’s decision into
question, we find no abuse of discretion.
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For the foregoing reasons, the petition for review is
DENIED. Accordingly, Xu’s pending motion for a stay of
removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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