Xia v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: June 22, 2018
• Docket: 12-2063
• Status: Unpublished

Opinion

12-2063 Xia v. Sessions BIA A097 512 072

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 22nd day of June, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIU KE XIA, 14 Petitioner, 15 16 v. 12-2063 17 NAC 18 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, 25 NY. 26 27 FOR RESPONDENT: Stuart F. Delery, Principal 28 Deputy Assistant Attorney General; 29 James A. Hunolt, Senior Litigation 1 Counsel; Jesse D. Lorenz, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a

8 Board of Immigration Appeals (“BIA”) decision, it is hereby

9 ORDERED, ADJUDGED, AND DECREED that the petition for review

10 is DENIED.

11 Petitioner Xiu Ke Xia, a native and citizen of the

12 People’s Republic of China, seeks review of an April 30, 2012,

13 decision of the BIA, denying his motion to reopen. In re Xiu

14 Ke Xia, No. A097 512 072 (B.I.A. Apr. 30, 2012). We assume

15 the parties’ familiarity with the underlying facts and

16 procedural history in this case.

17 The applicable standards of review are well established.

18 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

19 2008). In his motion to reopen, Xia asserted that he feared

20 persecution in China because he had begun practicing Falun

21 Gong in the United States.

22 It is undisputed that Xia’s 2011 motion to reopen was

23 untimely; it was filed more than three years after his removal

24 order became final in 2007. See 8 U.S.C. 2 1 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the

2 time limitation for filing a motion to reopen does not apply

3 if reopening is sought to apply for asylum and the motion “is

4 based on changed country conditions arising in the country of

5 nationality or the country to which removal has been ordered,

6 if such evidence is material and was not available and would

7 not have been discovered or presented at the previous

8 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R.

9 § 1003.2(c)(3)(ii). The BIA did not err in finding that Xia

10 failed to demonstrate such conditions.

11 Xia’s practice of Falun Gong in the United States is a

12 change in personal circumstances, not a change in conditions

13 in China as required to excuse the time limitation. See Li

14 Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

15 Cir. 2005). “In determining whether evidence accompanying a

16 motion to reopen demonstrates a material change in country

17 conditions that would justify reopening, [the BIA] compare[s]

18 the evidence of country conditions submitted with the motion

19 to those that existed at the time of the merits hearing

20 below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).

21 As the BIA found, reports from the U.S. Department of State 3 1 demonstrate that the Chinese government has outlawed and

2 mistreated Falun Gong practitioners since before Xia’s 2006

3 hearing. And, contrary to Xia’s contention, the record does

4 not establish that government officials are aware or likely

5 to become aware of his Falun Gong practice. Cf. Hongsheng

6 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o

7 establish a well-founded fear of persecution in the absence

8 of any evidence of past persecution, an alien must make some

9 showing that authorities in his country of nationality are

10 either aware of his activities or likely to become aware of

11 his activities.”).

12 Accordingly, given the country conditions evidence of

13 mistreatment of Falun Gong practitioners at the time of Xia’s

14 hearing, and the continuation of such conditions at the time

15 he filed his motion, the BIA reasonably concluded that his

16 evidence did not demonstrate a material change in country

17 conditions excusing the untimely filing of his motion. See

18 8 U.S.C. § 1229a(c)(7)(C); see also In re S-Y-G-, 24 I. & N.

19 Dec. at 253, 257. We do not consider Xia’s argument that he

20 established his prima facie eligibility for relief because

21 the BIA did not consider that issue apart from finding no 4 1 material change in conditions for Falun Gong practitioners in

2 China. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,

3 122 (2d Cir. 2007) (“[W]e may consider only those issues that

4 formed the basis for that decision.”).

5 For the foregoing reasons, the petition for review is

6 DENIED. As we have completed our review, any stay of removal

7 that the Court previously granted in this petition is VACATED,

8 and any pending motion for a stay of removal in this petition

9 is DENIED as moot. Any pending request for oral argument in

10 this petition is DENIED in accordance with Federal Rule of

11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12 34.1(b).

13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, 15 Clerk of Court