Chen v. Barr ( 2019 )

17-976
Chen v. Barr
BIA
A073 536 028
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
AMENDED 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 27th day of March, two thousand nineteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
ROBERT D. SACK,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
XIN CHEN,
Petitioner,
v. 17-976
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore N. Cox, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Keith I.
McManus, Assistant Director; John
B. Holt, 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 Xin Chen, a native and citizen of the People’s
Republic of China, seeks review of a March 31, 2017, decision
of the BIA denying his motion to reopen. In re Xin Chen, No.
A073 536 028 (B.I.A. Mar. 31, 2017). We assume the parties’
familiarity with the underlying facts and procedural history
in this case. We have reviewed the BIA’s denial of the motion
to reopen for abuse of discretion and considered whether its
conclusion regarding changed country conditions is supported
by substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008).
In his motion to reopen, Chen asserted that he had
converted to Christianity in the United States and that
worsened conditions for Christians in China both excused the
untimely filing of a second motion to reopen and demonstrated
his prima facie eligibility for asylum, withholding of
removal, and relief under the Convention Against Torture. It
is undisputed that Chen’s 2016 motion to reopen was untimely
and number barred as it was his second motion and was filed
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almost 20 years after his deportation order. See 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
However, the time and number limitations for filing a
motion to reopen do not apply 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); see also 8
C.F.R. § 1003.2(c)(3)(ii). “In determining whether
evidence accompanying a motion to reopen demonstrates a
material change in country conditions that would justify
reopening, [the agency] 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).
The agency committed two legal errors in its decision,
each of which is an abuse of discretion. First, the agency
found that Chen failed to demonstrate a material change in
country conditions because of record evidence demonstrating
that the Chinese government has viewed unfavorably and
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mistreated unregistered Christian groups since before
Chen’s deportation proceedings. However, the agency ignored
record evidence that persecution of Christians has become
more common and intense, which “clearly” bears on the
changed conditions inquiry. See Paul v. Gonzales, 444 F.3d
148, 157 (2d Cir. 2006).
Second, the agency found that the record evidence
indicated that persecution varies significantly from region
to region, implying that Chen had failed to meet his burden
to establish a change in his home area, the Fujian
Province. See Jian Hui Shao v. Mukasey, 546 F.3d 138, at
142, 149 (2d Cir. 2008) (upholding BIA’s conclusion that
where treatment varies by region, petitioner must establish
a change in his home area). However, the agency did not
consider any record evidence bearing on the conditions in
Fujian Province. This was an error.
Nevertheless, we deny the petition because “we can
state with confidence that the [BIA] would adhere to [its]
decision were the petition remanded.” Xiao Ji Chen v. U.S.
Dep’t of Justice, 434 F.3d 144, 158 (2d Cir. 2006); see
also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401
(2d Cir. 2005) (“[W]e are not required to remand where
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there is no realistic possibility that, absent the errors,
the IJ or BIA would have reached a different conclusion.”).
While we do not think the BIA would adhere to its decision
concerning changed conditions for Christians in China
generally, there is no realistic possibility that the BIA
would have reached a different conclusion concerning
conditions in Fujian Province. The BIA’s conclusion that
“restrictions on unregistered religious groups and
practices outside of ‘normal’ religious activities differed
in degree and varied from region to region,” App. at 4-5,
was supported by substantial evidence. Therefore, Chen had
to show changed conditions for Christians in Fujian
Province to establish a prima facie case for asylum. See
Shao v. Mukasey, 546 F.3d 138, 148-49 (2d Cir. 2008); Zhang
v. Holder, 594 F. App’x 20, 22 (2d Cir. 2015) (summary
order); Jiayang Xu v. Sessions, 710 F. App’x 474, 476 (2d
Cir. 2018) (summary order). Chen’s evidence does not
demonstrate increased persecution of Christian groups in
that province.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
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and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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