Wu v. Whitaker
This text of Wu v. Whitaker (Wu v. Whitaker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
15-4031 Wu v. Whitaker BIA A076 100 741
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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 18th day of December, two thousand 5 eighteen. 6 7 PRESENT: 8 JON O. NEWMAN, 9 DENNIS JACOBS, 10 PIERRE N. LEVAL, 11 Circuit Judges. 12 _____________________________________ 13 14 XIN ZHAO WU, AKA XIN ZAO WU, 15 Petitioner, 16 17 v. 15-4031 18 NAC 19 MATTHEW G. WHITAKER, ACTING 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Theodore N. Cox, New York, NY. 25 26 FOR RESPONDENT: Benjamin C. Mizer, Principal 27 Deputy Assistant Attorney General; 28 Holly M. Smith, Senior Litigation 29 Counsel; Rachel L. Browning, Trial
06152016-10 1 Attorney, Office of Immigration 2 Litigation, United States 3 Department of Justice, Washington, 4 DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Xin Zhao Wu, a native and citizen of the
11 People’s Republic of China, seeks review of a November 23,
12 2015, BIA decision denying his motion to reopen his removal
13 proceedings. In re Xin Zhao Wu, No. A076 100 741 (B.I.A.
14 Nov. 23, 2015). We assume the parties’ familiarity with the
15 underlying facts and procedural history in this case.
16 The applicable standards of review are well established.
17 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
18 2008). Wu moved to reopen his removal proceedings to present
19 evidence of his claimed fear of persecution based on the
20 births of his children in the United States purportedly in
21 violation of China’s population control program and based on
22 his practice of Christianity.
23 It is undisputed that Wu’s motion to reopen was
24 untimely because it was filed more than fifteen years after
25 an immigration judge ordered him removed in absentia. See 2 07102018-4 1 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The
2 time limitation does not apply if the motion is to reopen
3 proceedings in order to apply for asylum “based on changed
4 country conditions arising in the country of nationality or
5 the country to which removal has been ordered, if such
6 evidence is material and was not available and would not
7 have been discovered or presented at the previous
8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
9 8 C.F.R. § 1003.2(c)(3)(ii).
10 We find no error in the BIA’s determination that Wu
11 failed to demonstrate materially changed country conditions
12 related to the enforcement of the family planning policy.
13 See Jian Hui Shao, 546 F.3d at 159-66, 169-73 (agreeing
14 with the agency’s determination that evidence of isolated
15 incidents involving the use of force were insufficient in
16 light of significant country conditions evidence reflecting
17 the use of fines and economic incentives rather than force
18 to enforce the family planning policy). Nor did the BIA
19 err in finding that Wu’s evidence revealed that the Chinese
20 government has continuously repressed unregistered
21 religious groups since before Wu’s 2000 proceedings and
22 that the repression has varied in degree from year to year
3 07102018-4 1 and by region. See In re S-Y-G-, 24 I. & N. Dec. 247, 253
2 (BIA 2007) (“In determining whether evidence accompanying a
3 motion to reopen demonstrates a material change in country
4 conditions that would justify reopening, [the agency]
5 compare[s] the evidence of country conditions submitted
6 with the motion to those that existed at the time of the
7 merits hearing below.”); see also id. at 257 (“Change that
8 is incremental or incidental does not meet the regulatory
9 requirements for late motions . . . .”).
10 Accordingly, because Wu did not establish a material
11 change in conditions in China, the BIA did not abuse its
12 discretion in denying his motion to reopen as untimely. See
13 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c). We do not
14 reach the BIA’s alternative basis for denying Wu’s motion—
15 his failure to establish his prima facie eligibility for
16 relief. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As
17 a general rule courts and agencies are not required to make
18 findings on issues the decision of which is unnecessary to
19 the results they reach.”).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, the pending motion
22 for a stay of removal in this petition is DISMISSED as moot.
4 07102018-4 1 The pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate Procedure
3 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe 6 Clerk of Court
5 07102018-4
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