16-534 Li v. Garland BIA A070 900 637
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 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 the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 1st day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 8 DENNY CHIN, 9 RICHARD J. SULLIVAN, 10 MARIA ARAÚJO KAHN, 11 Circuit Judges. 12 _____________________________________ 13 14 QIN ZHI LI, AKA QINZHI LI, 15 16 Petitioner, 17 18 v. 16-534 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 1 FOR PETITIONER: Gary J. Yerman, New York, NY. 2 3 FOR RESPONDENT: Brian M. Boynton Principal Deputy 4 Attorney General; Liza S. Murcia, 5 Senior Litigation Counsel; Kathleen 6 Kelly Volkert, Trial Attorney, Office 7 of Immigration Litigation, United 8 States Department of Justice, 9 Washington, DC. 10 11 UPON DUE CONSIDERATION of this petition for review of a Board of
12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the petition for review is DENIED.
14 Petitioner Qin Zhi Li, a native and citizen of the People’s Republic of China,
15 seeks review of a January 28, 2016, decision of the BIA denying his motion to
16 reopen his removal proceedings to apply for asylum and related relief. In re Qin
17 Zhi Li, No. A 070 900 637 (B.I.A. Jan. 28, 2016). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 A motion to reopen ordinarily must be filed within ninety days of a final
20 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time
21 limit does not apply, however, if the movant seeks to reopen to apply for asylum
22 “based on changed country conditions arising in the country of nationality or the
2 1 country to which removal has been ordered, if such evidence is material and was
2 not available and would not have been discovered or presented at the previous
3 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
4 We review the BIA’s denial of a motion to reopen deferentially for abuse of
5 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). We
6 will identify such abuse only if the BIA’s decision-making was arbitrary or
7 capricious, as evidenced by a decision that provides no rational explanation for
8 the agency’s conclusion, inexplicably departs from established policies, is devoid
9 of any reasoning, or contains only summary or conclusory statements. See id. at
10 169.
11 That said, when a petitioner bases a motion to reopen on a purported change
12 in country conditions, “the BIA must compare the evidence of country conditions
13 submitted with the motion to those that existed at the time of the merits hearing
14 below.” Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (internal quotation
15 marks omitted); see also id. (“The BIA has broad discretion in how it conducts this
16 review, but it must explicitly consider any country conditions evidence submitted
17 by an applicant that materially bears on his claim.” (internal quotation marks
3 1 omitted)). Where such consideration has been given, we review the BIA’s fact-
2 finding only for substantial evidence. See Jian Hui Shao, 546 F.3d at 169; see also
3 Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001) (“Substantial
4 evidence . . . means such relevant evidence as a reasonable mind might accept as
5 adequate to support a conclusion.” (internal quotation marks omitted)).
6 Here, the BIA did not abuse its discretion in denying Li’s motion to reopen.
7 As the agency correctly determined, Li’s motion was untimely because he filed it
8 in 2015 – approximately thirteen years after the BIA affirmed his removal order in
9 2002 – and Li did not qualify for the changed-conditions exception. Li asserts that
10 he became a Christian in the United States in 2014 and that conditions for
11 Christians in China have materially worsened since his original proceedings. But
12 Li’s practice of Christianity is not itself a changed country condition. See Wei
13 Guang Wang v. Bd. of Immigr. Appeals, 437 F.3d 270, 273–74 (2d Cir. 2006) (holding
14 that a “self-induced change in personal circumstances cannot suffice” to show
15 changed country conditions excusing the time limit on a motion to reopen). And
16 substantial evidence supports the BIA’s conclusion that Li did not establish a
17 material change in conditions for Christians in China over the relevant time
4 1 period. Indeed, the BIA explicitly compared evidence of conditions at the time of
2 Li’s original proceedings in 1999 with those at the time of his motion in 2015, and
3 it reasonably found that the country-conditions evidence showed continuing
4 problems for Christians in China rather than a material change in circumstances.
5 See Tanusantoso, 962 F.3d at 698; compare, e.g., Certified Admin. Record at 871–72,
6 875 (1998 State Department report noting that the Chinese government requires
7 registration of five officially recognized religions (Catholicism, Protestantism,
8 Buddhism, Daoism and Islam) and closed hundreds of house church groups,
9 detained worshipers, and destroyed church property), with id. at 559–61 570, 579–
10 81 (2013 State Department report noting that unregistered house churches
11 continue to face persecution and illegal detention).
12 Li’s arguments to the contrary are unavailing. For example, Li asserts that
13 the BIA erred because it considered only whether conditions for Christians had
14 materially worsened in his home province of Fujian. But where, as here, the
15 record reveals that conditions vary throughout a country, the applicant has the
16 burden to establish conditions in his home province. See Jian Hui Shao, 546 F. 3d
17 at 149–50, 165–66; see also Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021)
5 1 (concluding that petitioner failed to meet his burden of proof because he produced
2 no evidence of persecution of Christians in Fujian Province). Li also asks this
Free access — add to your briefcase to read the full text and ask questions with AI
16-534 Li v. Garland BIA A070 900 637
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 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 the Second 2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 3 Square, in the City of New York, on the 1st day of September, two thousand 4 twenty-three. 5 6 PRESENT: 7 8 DENNY CHIN, 9 RICHARD J. SULLIVAN, 10 MARIA ARAÚJO KAHN, 11 Circuit Judges. 12 _____________________________________ 13 14 QIN ZHI LI, AKA QINZHI LI, 15 16 Petitioner, 17 18 v. 16-534 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 1 FOR PETITIONER: Gary J. Yerman, New York, NY. 2 3 FOR RESPONDENT: Brian M. Boynton Principal Deputy 4 Attorney General; Liza S. Murcia, 5 Senior Litigation Counsel; Kathleen 6 Kelly Volkert, Trial Attorney, Office 7 of Immigration Litigation, United 8 States Department of Justice, 9 Washington, DC. 10 11 UPON DUE CONSIDERATION of this petition for review of a Board of
12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
13 DECREED that the petition for review is DENIED.
14 Petitioner Qin Zhi Li, a native and citizen of the People’s Republic of China,
15 seeks review of a January 28, 2016, decision of the BIA denying his motion to
16 reopen his removal proceedings to apply for asylum and related relief. In re Qin
17 Zhi Li, No. A 070 900 637 (B.I.A. Jan. 28, 2016). We assume the parties’ familiarity
18 with the underlying facts and procedural history.
19 A motion to reopen ordinarily must be filed within ninety days of a final
20 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time
21 limit does not apply, however, if the movant seeks to reopen to apply for asylum
22 “based on changed country conditions arising in the country of nationality or the
2 1 country to which removal has been ordered, if such evidence is material and was
2 not available and would not have been discovered or presented at the previous
3 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
4 We review the BIA’s denial of a motion to reopen deferentially for abuse of
5 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). We
6 will identify such abuse only if the BIA’s decision-making was arbitrary or
7 capricious, as evidenced by a decision that provides no rational explanation for
8 the agency’s conclusion, inexplicably departs from established policies, is devoid
9 of any reasoning, or contains only summary or conclusory statements. See id. at
10 169.
11 That said, when a petitioner bases a motion to reopen on a purported change
12 in country conditions, “the BIA must compare the evidence of country conditions
13 submitted with the motion to those that existed at the time of the merits hearing
14 below.” Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (internal quotation
15 marks omitted); see also id. (“The BIA has broad discretion in how it conducts this
16 review, but it must explicitly consider any country conditions evidence submitted
17 by an applicant that materially bears on his claim.” (internal quotation marks
3 1 omitted)). Where such consideration has been given, we review the BIA’s fact-
2 finding only for substantial evidence. See Jian Hui Shao, 546 F.3d at 169; see also
3 Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001) (“Substantial
4 evidence . . . means such relevant evidence as a reasonable mind might accept as
5 adequate to support a conclusion.” (internal quotation marks omitted)).
6 Here, the BIA did not abuse its discretion in denying Li’s motion to reopen.
7 As the agency correctly determined, Li’s motion was untimely because he filed it
8 in 2015 – approximately thirteen years after the BIA affirmed his removal order in
9 2002 – and Li did not qualify for the changed-conditions exception. Li asserts that
10 he became a Christian in the United States in 2014 and that conditions for
11 Christians in China have materially worsened since his original proceedings. But
12 Li’s practice of Christianity is not itself a changed country condition. See Wei
13 Guang Wang v. Bd. of Immigr. Appeals, 437 F.3d 270, 273–74 (2d Cir. 2006) (holding
14 that a “self-induced change in personal circumstances cannot suffice” to show
15 changed country conditions excusing the time limit on a motion to reopen). And
16 substantial evidence supports the BIA’s conclusion that Li did not establish a
17 material change in conditions for Christians in China over the relevant time
4 1 period. Indeed, the BIA explicitly compared evidence of conditions at the time of
2 Li’s original proceedings in 1999 with those at the time of his motion in 2015, and
3 it reasonably found that the country-conditions evidence showed continuing
4 problems for Christians in China rather than a material change in circumstances.
5 See Tanusantoso, 962 F.3d at 698; compare, e.g., Certified Admin. Record at 871–72,
6 875 (1998 State Department report noting that the Chinese government requires
7 registration of five officially recognized religions (Catholicism, Protestantism,
8 Buddhism, Daoism and Islam) and closed hundreds of house church groups,
9 detained worshipers, and destroyed church property), with id. at 559–61 570, 579–
10 81 (2013 State Department report noting that unregistered house churches
11 continue to face persecution and illegal detention).
12 Li’s arguments to the contrary are unavailing. For example, Li asserts that
13 the BIA erred because it considered only whether conditions for Christians had
14 materially worsened in his home province of Fujian. But where, as here, the
15 record reveals that conditions vary throughout a country, the applicant has the
16 burden to establish conditions in his home province. See Jian Hui Shao, 546 F. 3d
17 at 149–50, 165–66; see also Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021)
5 1 (concluding that petitioner failed to meet his burden of proof because he produced
2 no evidence of persecution of Christians in Fujian Province). Li also asks this
3 Court to take judicial notice of country-conditions evidence published in 2022.
4 We decline to do so, however, as that evidence was not before the BIA and does
5 not reflect “fundamental change” in China. Hoxhallari v. Gonzales, 468 F.3d 179,
6 185–88 & n.5 (2d Cir. 2006); see also 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals
7 shall decide the petition only on the administrative record on which the order of
8 removal is based.”).
9 For the foregoing reasons, the petition for review is DENIED. All pending
10 motions and applications are DENIED and stays VACATED.
11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, 13 Clerk of Court