You Zhong Liu v. Holder

577 F. App'x 83

• Court: Court of Appeals for the Second Circuit
• Decided: September 5, 2014
• Docket: 13-652
• Status: Unpublished

Opinion

SUMMARY ORDER

Petitioner You Zhong Liu, a native and citizen of China, seeks review of a January 22, 2013, decision of the BIA denying his motion to reopen his removal proceedings. In re You Zhong Liu, No. A097 957 381 (B.I.A. Jan. 22, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). An alien seeking to reopen proceedings is required to file a motion to reopen no later than 90 days after the date on which the final administrative decision. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Although there is no dispute that Liu’s 2012 motion to reopen was untimely because the BIA issued a final order of removal in 2007, the time limitation does not apply to a motion to reopen “based on changed country conditions arising in the country of nationality ... 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).

However, Liu’s religious practice in the United States constitutes a changed personal circumstance, which is insufficient to excuse the untimely filing of his motion to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006). Contrary to Liu’s contention, if more than 90 days have passed since the order of removal, an alien seeking to file a successive asylum application must first show changed country conditions. See Yuen Jin v. Mukasey, 538 F.3d 143, 151-52 (2d Cir.2008).

Moreover, Liu’s evidence does not compel the conclusion that China’s treatment of Christians has worsened since the time of his merits hearing. See 8 U.S.C. § 1252(b)(4)(B) (BIA’s factual findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”); In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.2007). The recent country reports submitted to show changed conditions with respect to the treatment of Christians do not materially differ from the reports submitted at the time of Liu’s hearing. Finally, as Liu did not include his family planning claim in the asylum application he attached to his motion to reopen, the BIA properly declined to consider it. See 8 C.F.R. § 1003.2(c).