    13-2257
    Xu v. Holder
                                                                                  BIA
                                                                               Burr, IJ
                                                                          A072 764 210
                    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 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 2nd day of October, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    WEN HUNG XU, a.k.a. WEN GUANG XU a.k.a.
    WEN KUNG XU a.k.a. GEK SAN LOW,
             Petitioner,

                   v.                                      13-2257
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Peter D. Lobel, Esq., New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Douglas E. Ginsburg,
                                  Assistant Director, Paul Fiorino,
                                  Senior Litigation Counsel, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    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.

    Wen Hung Xu, a native and citizen of China, seeks

review of a May 9, 2013, decision of the BIA affirming the

October 4, 2011, decision of an Immigration Judge (“IJ”),

which denied his motion to reopen his 1994 exclusion

proceedings to permit him to apply for asylum, withholding

of removal, and relief under the Convention Against Torture

(“CAT”).     In re Wen Hung Xu, No. A072 764 210 (B.I.A. May 9,

2013), aff’g No. A072 764 210 (Immig. Ct. N.Y.C. Oct. 4,

2011).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA.     See Xue Hong Yang

v. U.S. Dep’t Justice, 426 F.3d 520, 522 (2d Cir. 2005).      We

review motions to reopen for abuse of discretion, Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam), and

review determinations regarding changed country conditions

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

138, 169 (2d Cir. 2008).     In order to reopen in absentia

exclusion proceedings, an alien must demonstrate either

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reasonable cause for his failure to appear at his hearing,

or a material change in country conditions to excuse the

relevant time limitation on motions to reopen.       Twum v. INS,

411 F.3d 54, 58 n.2 (2d Cir. 2005).     Xu has demonstrated

neither.

    First, Xu has not demonstrated cause for his failure to

appear for a hearing in 1994: his brief does not address the

in absentia order or allege reasonable cause for failure to

appear.    Second, he has not demonstrated any material change

in conditions warranting reopening of his proceedings.        An

alien seeking to reopen proceedings in order to apply for

new relief is required to file a motion to reopen no later

than ninety days after the date on which the final

administrative decision was rendered.     8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.23(b)(1).       There is no

question that Xu’s 2011 motion to reopen was untimely

because the IJ issued the exclusion order in 1994.       However,

the time and number limitations do not apply if the motion

is “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 hearing.”     8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4).

                               3
    Here, contrary to Xu’s contentions, the agency did not

ignore evidence of changed country conditions.   Xu’s 2011

baptism into the Christian faith constitutes a changed

personal circumstance, which is insufficient to demonstrate

a change in country conditions. Wei Guang Wang v. BIA, 437

F.3d 270, 273-74 (2d Cir. 2006); Li Yong Zheng v. U.S. Dep’t

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

curiam).

    Furthermore, the agency’s determination that Xu’s

evidence did not establish a change in the treatment of

Christians in China is supported by substantial evidence.

The evidence shows that the mistreatment was a continuation

of previous conditions.   For example, the

Congressional-Executive Commission on China’s 2010 Annual

Report, upon which Xu relies in support of his changed

country conditions claim, states that “authorities continued

to harass and detain arbitrarily members of house churches

throughout China and interfere with their places of

worship,” and the State Department’s 2009 Human Rights

Report states that the “government continued to strictly

control religious practice,” “Government efforts to control

and regulate religious groups, particularly unregistered


                              4
groups, continued,” and “[h]arassment of unregistered

Catholic bishops, priests, and lay persons continued.”    In

his brief, Xu cites to an article that relies on a report by

the charity Christian Solidarity Worldwide for the

proposition that “[h]uman rights groups have documented an

increasing number of arrests of Chinese Christians since the

beginning of 2004 . . . especially in the provinces of

Zhejiang, Jiangsu and Hebe[i].”   The article, however,

actually states:

    Human rights groups have documented an increasing
    number of arrests of Chinese Christians since the
    beginning of 2004.

    According to the charity Christian Solidarity
    Worldwide, persecution is becoming more systematic
    and targeted at large-scale Christian gatherings.

    Since June [2004] the charity has documented three
    mass arrests of unregistered Christians. In each
    case more than 100 people were detained.
    Amnesty international has reported many cases of
    detained church leaders in recent years,
    especially in the provinces of Zhejiang, Jiangsu
    and Hebei.

Certified Administrative Record at 111 (article from

news.bbc.co.uk) (emphasis added to demonstrate alteration).

Accordingly, because the evidence supports the BIA’s

conclusion that there has not been a change and Xu has

pointed to no evidence calling the BIA’s decision into

question, we find no abuse of discretion.
                             5
    For the foregoing reasons, the petition for review is

DENIED.   Accordingly, Xu’s pending motion for a stay of

removal in this petition is DENIED as moot.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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