    16-3061
    Ye v. Barr
                                                                                   BIA
                                                                       A098 718 081/307

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 3rd day of September, two thousand nineteen.

    PRESENT:
             JON O. NEWMAN,
             DENNIS JACOBS,
             PIERRE N. LEVAL,
                  Circuit Judges.
    _____________________________________

    FANG YE, BO XIN CHEN,
             Petitioners,

                   v.                                            16-3061
                                                                 NAC
    WILLIAM P. BARR, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONERS:                  Theodore N. Cox, New York, NY.

    FOR RESPONDENT:                   Joseph H. Hunt, Assistant
                                      Attorney General; Paul Fiorino,
                                      Senior Litigation Counsel; Erik R.
                                      Quick, Trial Attorney, Office of
                                      Immigration Litigation, United
                                      States Department of Justice,
                                      Washington, DC.
     06152016-10
        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.

        Petitioners Fang Ye and Bo Xin Chen, natives and citizens

of the People’s Republic of China, seek review of an August

29, 2016, BIA decision denying their motion to reopen their

removal proceedings.        In re Fang Ye, Bo Xin Chen, Nos. A098

718 081/307 (B.I.A. Aug. 29, 2016).          We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

        The applicable standards of review are well established.

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

2008).       Petitioners moved to reopen their removal proceedings

to present evidence of their claimed fear of persecution based

on the births of their second child in the United States

purportedly       in   violation   of   China’s   population   control

program.

        It is undisputed that Petitioners’ motion to reopen was

untimely because it was filed more than five years after they

were ordered removed.          See 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2).       The time limitation does not apply

if the motion is to reopen proceedings in order to apply for
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asylum “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);

see also 8 C.F.R. § 1003.2(c)(3)(ii).

        We   find   no   error   in   the    BIA’s   determination      that

Petitioners failed to demonstrate materially changed country

conditions related to the enforcement of the family planning

policy.       See Jian Hui Shao, 546 F.3d at 159-66, 169-73.

Contrary to Petitioners’ argument, a comparison of the BIA’s

2011 decision denying asylum and its 2016 decision declining

to reopen does not support a finding of changed conditions

because in both decisions the BIA found that family planning

officials      in   Petitioners’      home   province   primarily       used

economic incentives and punishments to enforce the family

planning policy and that “incidents of coercion                   .     .   .

have been a longstanding concern . . . .” BIA op. at 3.

Further, the BIA did not violate due process by recognizing

recent       country     conditions    evidence      that   the       Chinese

government intends to relax the family planning policy rather

than make it stricter.        See Jian Hui Shao at 166-68 (providing

that it is well-settled that the BIA has the authority to
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take administrative notice of country conditions in State

Department reports (citing 8 C.F.R. § 1003.1(d)(3)(iv))).

        Accordingly, because Petitioners did not establish a

material change in conditions in China, the BIA did not abuse

its discretion in denying their motion to reopen as untimely.

See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c).             We do

not          reach   the   BIA’s    alternative   basis   for   denying

Petitioners’ motion—their failure to establish prima facie

eligibility for relief.            See INS v. Bagamasbad, 429 U.S. 24,

25 (1976) (“As a general rule courts and agencies are not

required to make findings on issues the decision of which is

unnecessary to the results they reach.”).

        For the foregoing reasons, the petition for review is

DENIED.         As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot.

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




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