     17-1
     Ou v. Sessions
                                                                                 BIA
                                                                          A070 886 882


                           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 7th day of June,two thousand eighteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   GUO QIN OU,
14                          Petitioner,
15
16                    v.                                         17-1
17                                                               NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20                 Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                      Gary J. Yerman, New York, NY.
24
25   FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
26                                        Attorney General; Anthony C.
27                                        Payne, Assistant Director;
28                                        Kathleen Kelly Volkert, Trial
 1                             Attorney, Office of Immigration
 2                             Litigation, United States
 3                             Department of Justice, Washington,
 4                             DC.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is DENIED.

10       Petitioner Guo Qin Ou, a native and citizen of the

11   People’s Republic of China, seeks review of a December 6,

12   2016, decision of the BIA denying his motion to reopen.   In

13   re Guo Qin Ou, No. A 070 886 882 (B.I.A. Dec. 6, 2016).   We

14   assume the parties’ familiarity with the underlying facts and

15   procedural history in this case.

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

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

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

19   45 F.3d 15, 17 (2d Cir. 1995), and Ou has filed his merits

20   brief.   Accordingly, we treat the Government’s motion as a

21   response to that brief, and deny the petition.

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

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

                                  2
 1   regarding country conditions under the substantial evidence

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

 3   Cir. 2008).

 4         It is undisputed that Ou’s 2016 motion to reopen was

 5   untimely because his removal order became final in 2002.                 See

 6   8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for

 7   motions to reopen); 8 C.F.R. § 1003.2(c)(2)(same).                  Although

 8   this time limitation does not apply if the motion is filed to

 9   apply for asylum “based on changed country conditions” since

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

11   § 1229a(c)(7)(C)(ii);          8     C.F.R.     § 1003.2(c)(3)(ii),       as

12   discussed below, the BIA’s conclusion that Ou failed to

13   establish such a change is supported by substantial evidence.

14   See Jian Hui Shao, 546 F.3d at 169.

15         The BIA reasonably concluded that Ou did not establish

16   a material change in country conditions, given that Ou’s

17   evidence      revealed    that        the      Chinese   government      has

18   continuously    repressed      Christians,        especially   members    of

19   unregistered     churches,         since    before   1998,   with   varying

20   degrees of restriction from region to region.                In re S-Y-G-,

21   24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether
                                            3
1    evidence   accompanying       a   motion    to   reopen   demonstrates      a

2    material change in country conditions that would justify

3    reopening,    [the   BIA]     compare[s]     the   evidence     of    country

4    conditions submitted with the motion to those that existed at

5    the time of the merits hearing below.”).              Ou’s argument that

6    the BIA failed to consider evidence of increased persecution

7    is without merit given that the BIA extensively cited Ou’s

8    submissions, which demonstrated that although there were some

 9   instances of increased persecution of Christians, conditions

10   varied widely by region.             Further, Ou’s evidence notably

11   lacked any indication of a deterioration of conditions for

12   Christians in Fujian Province, Ou’s home region.                     See Jian

13   Hui   Shao,   546    F.3d    at   149-50,    165-66    (upholding       BIA’s

14   conclusion    that    when    fear    of    persecution    is    based     on

15   enforcement of a policy that varies by region, it is the

16   applicant’s burden to show enforcement of the policy in his

17   or her home region).

18         Given the evidence of a continuation of conditions, the

19   BIA did not abuse its discretion in denying Ou’s motion to

20   reopen as untimely.         See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R.

21   § 1003.2(c)(2).
                                          4
 1       Because the BIA’s timeliness ruling is dispositive, we

 2   do not reach the BIA’s alternative holding regarding Ou’s

 3   prima     facie   eligibility     for   asylum.         8    U.S.C.

 4   § 1229a(c)(7)(C)(i);   INS   v.   Bagamasbad,   429   U.S.   24,   25

 5   (1976).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.    As we have completed our review, the motions for a

 8   stay of removal and summary denial are DENIED.         Any pending

 9   request for oral argument in this petition is DENIED in

10   accordance with Federal Rule of Appellate Procedure 34(a)(2),

11   and Second Circuit Local Rule 34.1(b).

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




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