Zhao v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: August 11, 2020
• Docket: 13-22
• Status: Unpublished

Opinion

13-22 Zhao v. Barr BIA A077 107 399

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 11th day of August, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________

JINBEI ZHAO, AKA KAZUMI MILYATA, Petitioner,

v. 13-22 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Gary J. Yerman, New York, NY.

FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney General; Kiley Kane, Senior Litigation Counsel; Jane T. Schaffner, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Jinbei Zhao, a native and citizen of the

People’s Republic of China, seeks review of a December 7,

2012 decision of the BIA, denying her fourth motion to reopen.

In re Jin Bei Zhao, No. A077 107 399 (B.I.A. Dec. 7, 2012).

We assume the parties’ familiarity with the underlying facts

and procedural history.

Zhao was ordered removed in 2005 and filed her fourth

motion to reopen in 2012, in which she asserted that she had

begun to practice Christianity and that she feared religious

persecution in China. In general, a party may file only one

motion to reopen a proceeding before the BIA, and that party

must file such a petition within ninety days after the date

on which the BIA rendered its final decision. See 8 U.S.C.

§ 1229a(c)(7)(A) & (C)(i); 8 C.F.R. § 1003.2(c)(2). It is

thus undisputed that Zhao’s 2012 motion was untimely and

number-barred because it was her fourth motion to reopen, 2 filed more than seven years after her removal order became

final.

However, the time and number limitations for filing a

motion to reopen do not apply if reopening is sought to apply

for asylum and the motion “is 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); accord 8 C.F.R.

§ 1003.2(c)(3). Zhao argued to the BIA that China’s

worsening treatment of Christians constituted such a changed

country condition, thereby allowing her to bring her motion.

The BIA disagreed, finding that Zhao had not demonstrated

changed country conditions, and therefore holding that her

motion was time- and number-barred.

We review the BIA’s denial of a motion to reopen for

abuse of discretion and its evaluation of country conditions

evidence for substantial evidence. Shao v. Mukasey, 546 F.3d

138, 168–69 (2d Cir. 2008). We find that substantial

evidence supports the BIA’s determination that the relevant

country conditions had not changed from 2004 to 2012, and 3 that the BIA did not abuse its discretion in denying Zhao’s

motion to reopen.

As a threshold matter, Zhao’s conversion to Christianity

was a change in personal circumstances, not a change in

conditions in China. Only the latter would excuse the time

and number limitations. See Zheng v. U.S. Dep’t of Justice,

416 F.3d 129, 130-31 (2d Cir. 2005).

More to the point, substantial evidence supports the

BIA’s determination that the Chinese government has

continuously repressed unregistered religious groups since

before Zhao’s 2004 proceedings and that the repression has

varied in degree and region from year to year. See 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.”). Because Zhao

submitted only limited evidence of country conditions at the

time of her merits hearing, the BIA properly took

administrative notice of the U.S. State Department’s 2004

Profile of Asylum Claims and Country Conditions, which 4 establishes that repression of unregistered Christian

churches was widespread in Fujian Province at that time. See

8 C.F.R. § 1003.1(d)(3)(iv).

Further, the BIA did not err in declining to credit

Zhao’s son’s unsworn letter on the ground that it was prepared

for this litigation and contained few details about his

alleged arrest and beating in 2011. See Y.C. v. Holder, 741

F.3d 324, 334 (2d Cir. 2013). At any rate, the letter does

not discuss a change in country conditions since the time of

Zhao’s hearing but rather describes an incident similar to

those discussed in the country conditions evidence from that

time. See In re S-Y-G-, 24 I. & N. Dec. at 253.

Accordingly, because the BIA reasonably concluded that

Zhao failed to demonstrate a material change in conditions in

China, it did not abuse its discretion in denying her motion

as untimely and number barred. See 8 U.S.C. § 1229a(c)(7)(A)

& (C). Because the denial as untimely and number barred is

dispositive, we do not reach Zhao’s argument that she

established her prima facie eligibility for relief—an issue

not properly before us because the BIA did not consider it.

See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d

Cir. 2007) (“[W]e may consider only those issues that formed 5 the basis for [the BIA’s] decision.”).

For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and

stays VACATED.

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