Guan v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: October 2, 2019
• Docket: 17-1470, 18-1834
• Status: Unpublished

Opinion

17-1470, 18-1834 Guan v. Barr BIA A072 765 896

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 2nd day of October, two thousand nineteen.

PRESENT: JON O. NEWMAN, DENNIS JACOBS, PIERRE N. LEVAL, Circuit Judges. _____________________________________

SHI HUI GUAN, Petitioner, 17-1470 v. 18-1834 NAC

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER IN 17-1470: Theodore N. Cox, New York, NY.

FOR PETITIONER IN 18-1834: Ning Ye, Flushing, NY.

1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Katherine A. Smith, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of these petitions for review of

two Board of Immigration Appeals (“BIA”) decisions, it is

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

review are CONSOLIDATED and DENIED.

Petitioner Shi Hui Guan, a native and citizen of the

People’s Republic of China, seeks review of the April 26,

2017, and May 29, 2018, BIA decisions denying his motions to

reconsider and reopen filed in his exclusion proceedings. In

re Shi Hui Guan, No. A072 765 896 (B.I.A. Apr. 26, 2017, May

29, 2018). The Government moves to consolidate the petitions

over Guan’s opposition. We conclude that consolidation is

appropriate because Guan’s petitions seek review of the BIA’s

denial of related motions to reconsider and reopen filed in

his exclusion proceedings. See 8 U.S.C. § 1252(b)(6).

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

2 v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

Docket 17-1470

Guan moved to reopen his exclusion proceedings to present

evidence of his claimed fear of persecution based on the

births of his children in the United States purportedly in

violation of China’s population control program. It is

undisputed that Guan’s motion to reopen was untimely and

number barred because it was his second motion to reopen filed

more than 21 years after he was ordered deported. See

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).

The time and numerical limitations do not apply if the motion

is to reopen proceedings in order to apply for asylum “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).

We find no error in the BIA’s determination that Guan

failed to demonstrate materially changed country conditions

related to the enforcement of the family planning policy.

See Jian Hui Shao, 546 F.3d at 159-66, 169-73 (noting that 3 country conditions evidence from 1998 to 2007 indicated that

enforcement of family planning policy was generally lax in

Fujian Province with isolated reports of force being used);

see also In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)

(“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.”).

Further, the BIA reasonably noted that the Chinese government

had recently relaxed enforcement of the family planning

policy rather than tightened it as Guan had suggested.

Accordingly, because Guan did not establish a material

change in conditions in China, the BIA did not abuse its

discretion in denying his motion to reopen as untimely and

number barred. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

§ 1003.2(c). We do not reach the BIA’s alternative basis for

denying Guan’s motion—his failure to establish his prima

facie eligibility for relief. See INS v. Bagamasbad, 429

U.S. 24, 25 (1976) (“As a general rule courts and agencies

are not required to make findings on issues the decision of

which is unnecessary to the results they reach.”). 4 Docket 18-1834

Guan moved to reconsider and reopen, arguing that the

agency violated his due process rights and erred in finding

him not credible in his underlying exclusion proceedings, and

that he fears persecution under the family planning policy

and as a Falun Gong practitioner. As the BIA found, insofar

as Guan moved for reconsideration, his December 2017 motion

was untimely because it was not filed within 30 days of any

of the BIA’s decisions, the most recent of which had been

issued more than 7 months earlier in April 2017, and there is

no exception to the time limitation for motions to reconsider.

See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b).

As a motion to reopen, Guan’s motion was both untimely

and number barred because it was his third motion to reopen

filed more than 22 years after he was ordered deported. See

Although a material change in country conditions may excuse

the untimely or number barred filing of a motion to reopen,

the BIA did not abuse its discretion in declining to revisit

whether Guan had established such conditions as to his fear

of forced sterilization based on the births of his four

children because it had previously considered and rejected 5 such a claim in the denial of his second motion to reopen

(which is the motion at issue in docket number 17-1470) and

he did not submit any new evidence related to conditions in

China. See 8 U.S.C. § 1229a(c)(7)(B) (“The motion to reopen

shall state the new facts that will be proven at a hearing to

be held if the motion is granted, and shall be supported by

affidavits or other evidentiary material.”); see also United

States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)

(discussing the law of the case doctrine and recognizing “that

when a court has ruled on an issue, that decision should

generally be adhered to by that court in subsequent stages in

the same case, unless cogent and compelling reasons militate

otherwise” (internal quotation marks and citation omitted)).

The BIA also did not err in declining to reopen due to

Guan’s failure to demonstrate his prima facie eligibility for

relief based on his alleged practice of Falun Gong. See INS

v. Abudu, 485 U.S. 94, 104 (1988) (recognizing that a movant’s

failure to establish a prima facie case for the underlying

substantive relief sought is a proper ground for the agency

to deny a motion to reopen). As the BIA noted, in denying

Guan’s first motion to reopen, it had declined to credit his

claim that he practices Falun Gong and would suffer 6 persecution as a result in light of the underlying adverse

credibility determination and the lack of evidence that

Chinese government officials were aware or likely to become

aware of his practice. We found no error in that decision.

Shi Hui Guan v. Lynch, 648 F. App’x 129 (2d Cir. 2016). Guan

now asserts that Chinese officials have discovered his Falun

Gong practice and harassed his father and sister as a result,

but aside from his own statement, he provided no evidence to

corroborate these assertions. As we found in reviewing the

BIA’s denial of Guan’s first motion to reopen, the BIA was

not compelled to credit Guan’s unsupported assertions,

particularly in light of the underlying adverse credibility

determination, see 8 U.S.C. § 1229a(c)(7)(B) (providing that

motion must be supported by affidavits or other evidentiary

material); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143,

146-49 (2d Cir. 2007) (relying on the doctrine falsus in uno,

falsus in omnibus to conclude that the agency may decline to

credit individualized documentary evidence submitted with a

motion to reopen by an alien who was found not credible in

the underlying proceeding).

Accordingly, because Guan did not submit any compelling

evidence that Chinese officials are aware of his practice of 7 Falun Gong or any country conditions evidence from which the

BIA could discern whether officials are likely to discover

his practice, the BIA did not err in finding that Guan failed

to demonstrate his prima facie eligibility for relief based

on his Falun Gong claim. See Abudu, 485 U.S. at 104; see

also Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.

2008) (“[T]o establish a well-founded fear of persecution in

the absence of any evidence of past persecution, an alien

must make some showing that authorities in his country of

nationality are either aware of his activities or likely to

become aware of his activities.”).

We lack jurisdiction to review the BIA’s decision insofar

as it declined to reopen Guan’s proceedings pursuant to its

discretionary authority. See Ali v. Gonzales, 448 F.3d 515,

518 (2d Cir. 2006).

For the foregoing reasons, the petitions for review are

CONSOLIDATED and DENIED.

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