     18-3
     Lee v. Barr
                                                                                  BIA
                                                                             Ruehle, IJ
                                                                          A076 027 780
                        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 3rd day of December, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   SIEW WAI LEE,
14            Petitioner,
15
16                 v.                                            18-3
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  John Chang, Esq., New York, NY.
24
25   FOR RESPONDENT:                  Joseph A. Hunt, Assistant
26                                    Attorney General; Shelley R. Goad,
27                                    Assistant Director; Nancy Kwang
28                                    Canter, Trial Attorney, Office of
29                                    Immigration Litigation, United
30                                    States Department of Justice,
31                                    Washington, DC.
1           UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5           Petitioner   Siew   Wai   Lee,   a   native   and    citizen   of

6    Malaysia, seeks review of a December 22, 2017, decision of

7    the BIA affirming a June 27, 2017, decision of an Immigration

8    Judge (“IJ”) denying Lee’s motion to reopen.          In re Siew Wai

9    Lee, No. A 076 027 780 (B.I.A. Dec. 22, 2017), aff’g No. A 076

10   027 780 (Immig. Ct. Buffalo Jun. 27, 2017).            We assume the

11   parties’ familiarity with the underlying facts and procedural

12   history in this case.

13          Under the circumstances of this case, we have reviewed

14   the IJ’s decision as supplemented by the BIA.              See Yan Chen

15   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

16     I.     Changed Country Conditions

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

18   an abuse of discretion but review any finding regarding

19   changed country conditions for substantial evidence.               Jian

20   Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

21          An alien seeking to reopen proceedings may file only one


                                        2
1    motion to reopen no later than 90 days after the date on which

2    the final administrative decision was rendered.        8 U.S.C.

3    § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1).      It is

4    undisputed that Lee’s 2017 motion to reopen was untimely

5    because he filed it nearly 18 years after the IJ ordered him

6    removed in 1999.   However, the time limitation for filing a

7    motion to reopen does not apply if reopening is sought to

8    apply for asylum and the motion is “based on changed country

9    conditions arising in the country of nationality or the

10   country to which removal has been ordered, if such evidence

11   is material and was not available and would not have been

12   discovered or presented at the previous proceeding.”          8

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

14   § 1003.23(b)(4)(i).   The agency did not abuse its discretion

15   in denying reopening on this basis.

16       As the agency determined, Lee failed to establish a

17   material change in conditions in Malaysia as needed to excuse

18   his untimely filing.    Lee submitted numerous articles to

19   support his motion, but most of the articles did not discuss

20   the treatment of people of Chinese descent or Buddhists, did

21   not indicate the author and source, and/or were undated.


                                   3
1    Beyond his own statements that he experienced discrimination,

2    he did not submit any substantive evidence of conditions

3    before his 1999 hearing as a comparison.            See In re S-Y-G-,

4    24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether

5    evidence    accompanying   a     motion   to   reopen    demonstrates     a

6    material change in country conditions that would justify

7    reopening, [the agency] compare[s] the evidence of country

8    conditions submitted with the motion to those that existed at

9    the time of the merits hearing below.”).                One article from

10   2009 does reference a 1969 riot between ethnic Malays and

11   ethnic Chinese that resulted in 200 deaths over three days,

12   but the article states that more recent protests have been

13   non-violent, and that “Malaysians of all ethnicities enjoy

14   increased freedom now to express themselves[.]”                  Certified

15   Administrative Record at 429.             The 2015 State Department

16   Religious     Freedom   Report    for   Malaysia   that    the    IJ   took

17   administrative notice of did not indicate that Buddhists were

18   persecuted.     The IJ also took administrative notice of the

19   2016 State Department Human Rights Report for Malaysia which

20   stated that the ethnic Chinese population faced limitations

21   in   higher   education,   government      employment,      and   forming


                                         4
1    businesses,    but    it   is    unclear    whether   these   limitations

2    existed before 1999 and, if so, whether they had worsened.

3    Based on this record, the agency did not err in determining

4    that Lee failed to establish a material change in conditions

5    in Malaysia.

6         Moreover, Lee’s argument that the IJ ignored evidence is

7    unsupported.        The IJ explicitly stated that he considered

8    Lee’s articles from 2007 and 2010.              See Jian Hui Shao, 546

9    F.3d at 169 (explaining that although the agency is required

10   to “consider relevant evidence of country conditions[,]” the

11   agency need not “expressly parse or refute on the record each

12   individual argument or piece of evidence” (internal quotation

13   marks omitted)).       Lee also argues that the record reflects

14   that there has been “cold-blooded murder of the Chinese” in

15   Malaysia.     But the article Lee relies on is an undated opinion

16   piece by an unknown author about general race relations in

17   Malaysia, and the “cold-blooded murder” line does not refer

18   to   a   specific    murder     of   any   person   because   of   race   or

19   ethnicity but is simply a hypothetical used by the author to

20   decry racial tension.

21        Accordingly, because Lee failed to demonstrate a material


                                            5
1    change in country conditions, the agency did not abuse its

2    discretion in denying his motion to reopen as untimely.                   See

3    8 U.S.C. § 1229a(c)(7)(C).            We do not reach the agency’s

4    alternate finding that Lee did not demonstrate prima facie

5    eligibility for relief.         See INS v. Abudu, 485 U.S. 94, 104-

6    05 (1988) (observing that the agency may deny an untimely

7    motion    to    reopen   for   failure     to    demonstrate     materially

8    changed country conditions or prima facie eligibility for the

9    underlying substantive relief sought); INS v. Bagamasbad, 429

10   U.S. 24, 25 (1976) (“As a general rule courts and agencies

11   are not required to make findings on issues the decision of

12   which is unnecessary to the results they reach.”).

13       II. Sua Sponte Reopening

14         The agency also declined to exercise its authority to

15   reopen sua sponte.        While we generally lack jurisdiction to

16   review    the     agency’s     “entirely        discretionary”     decision

17   declining to reopen sua sponte, Ali v. Gonzales, 448 F.3d

18   515, 518 (2d Cir. 2006), we retain jurisdiction if the BIA

19   “misperceived the legal background and thought, incorrectly,

20   that a reopening would necessarily fail,”1 Mahmood v. Holder,


     1 We note that the BIA’s denial of reopening predated Pereira v. Sessions, 138
     S. Ct. 2105, 2109 (2018), and the BIA incorrectly stated that the notice to
                                           6
1    570 F.3d 466, 469 (2d Cir. 2009).               Lee argues that the BIA

2    erred in finding that he was required to demonstrate due

3    diligence in pursuing his case in order to warrant sua sponte

4    reopening.      But the BIA did not state this was a prerequisite;

5    it simply considered that Lee failed to do so as part of its

6    discretionary determination that he had not presented an

7    exceptional situation.          See In re J-J-, 21 I. & N. Dec. 976,

8    984 (BIA 1997) (“The power to reopen on our own motion is not

9    meant to be used as a general cure for filing defects or to

10   otherwise circumvent the regulations, where enforcing them

11   might result in hardship.”).

12         For the foregoing reasons, the petition for review is

13   DENIED.    All pending motions and applications are DENIED and

14   stays VACATED.

15                                       FOR THE COURT:
16                                       Catherine O’Hagan Wolfe,
17                                       Clerk of Court
18




     appear stopped Lee’s accrual of continuous presence for cancellation of removal.
     But we find no basis to remand. Lee does not argue this point, and the BIA has
     subsequently held that a hearing notice that provides the information omitted
     from the notice to appear stops the time, and Lee personally received such a
     notice shortly after his notice to appear. In re Mendoza-Hernandez, 27 I. &
     N. Dec. 520 (BIA 2019) (en banc).
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