     16-3197
     Xu v. Sessions
                                                                                    BIA
                                                                       Gordon-Uruakpa, IJ
                                                                            A016 087 178
                           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 19th day of January, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            GUIDO CALABRESI,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   TING XU,
14                    Petitioner,
15
16                    v.                                         16-3197
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                   Scott Eric Bratton, Cleveland,
24                                     OH.
25
26   FOR RESPONDENT:                   Chad A. Readler, Acting Assistant
27                                     Attorney General; Anthony C.
28                                     Payne, Assistant Director;
29                                     Kathleen Kelly Volkert, Attorney,
30                                     Office of Immigration Litigation,
31
1                                 United States Department of
2                                 Justice, Washington, DC.
3
4        UPON DUE CONSIDERATION of this petition for review of a

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

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

7    is DENIED.

8        Petitioner Ting Xu, a native and citizen of China,

9    seeks review of an August 18, 2016, decision of the BIA

10   affirming a February 12, 2015, decision of an Immigration

11   Judge (“IJ”) denying Xu’s motion to reopen his removal

12   proceedings.     In re Ting Xu, No. A 016 087 178 (B.I.A. Aug.

13   18, 2016), aff’g No. A 016 087 178 (Immig. Ct. N.Y. City

14   Feb. 12, 2015).     We assume the parties’ familiarity with

15   the underlying facts and procedural history in this case.

16       In lieu of filing a brief, the Government moves for

17   summary denial of Xu’s petition for review.     Summary denial

18   is warranted only if a petition is frivolous, Pillay v.

19   INS, 45 F.3d 14, 17 (2d Cir. 1995), and Xu has filed his

20   merits brief.     Accordingly, we treat the Government’s

21   motion as a response to that brief, and deny the petition

22   on the merits.




                                     2
1        We review the BIA’s denial of Xu’s motion to reopen for

2    abuse of discretion, and review the BIA’s factual findings

3    regarding country conditions under the substantial evidence

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

5    Cir. 2008).

6        It is undisputed that Xu’s 2014 motion to reopen was

7    untimely because the final administrative decision was

8    issued in 2008.     See 8 U.S.C. § 1229a(c)(7)(C)(i)(setting

9    90-day filing period for motions to reopen); 8 C.F.R.

10   §§ 1003.2(c)(2), 1003.23(b)(1) (same).         Although this time

11   limitation does not apply if the motion is filed to apply

12   for asylum “based on changed country conditions” since the

13   time of the original hearing, 8 U.S.C.

14   § 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii),

15   1003.23(b)(4)(i), as discussed below, the BIA’s conclusion

16   that Xu failed to establish such a change is supported by

17   substantial evidence, see Jian Hui Shao, 546 F.3d at 169.

18       The BIA reasonably concluded that Xu did not establish a

19   material change in conditions in China.         Xu’s conversion to

20   Christianity   in    2012   was   a   change     in   his   personal

21   circumstances, not a change in country conditions that could

22   excuse the time limitation on his motion to reopen.          See Wei
                                       3
1    Guang Wang v. Bd. of Immigration Appeals, 437 F.3d 270, 273-

2    74 (2d Cir. 2006).        His new evidence discussed isolated

3    incidents of persecution in China, which do not equate to a

4    change in conditions, particularly given that the evidence

5    showed similar conditions at the time of his hearing.                In re

6    S-Y-G-, 24 I. & N. Dec. 247, 257 (B.I.A. 2007) (“Change that

7    is incremental or incidental does not meet the regulatory

8    requirements for late motions of this type.”).             Further, none

9    of the evidence Xu submitted concerned his home province of

10   Jilin.     See   Jian   Hui    Shao,    546   F.3d   at   158-59,   163-65

11   (explaining that where policies vary by region, a movant has

12   the burden of showing conditions in his home province).

13       For the foregoing reasons, the petition for review is

14   DENIED.    As we have completed our review, any stay of removal

15   that the Court previously granted in this petition is VACATED,

16   and any pending motion for a stay of removal in this petition

17   is DISMISSED as moot.         Any pending request for oral argument

18   in this petition is DENIED in accordance with Federal Rule of

19   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

20   34.1(b).

21                                     FOR THE COURT:
22                                     Catherine O’Hagan Wolfe, Clerk


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