                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-3441
                                     ___________

                         FENG MEI XIU, a/k/a Feng Mei Xu,
                                          Petitioner

                                           v.

        ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                                    Respondent
                ____________________________________

                     On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A079 447 466)
                  Immigration Judge: Honorable Rosalind K. Malloy
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 February 13, 2013

               Before: AMBRO, JORDAN and BARRY, Circuit Judges

                             (Opinion filed: May 06, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Feng Mei Xiu, a native and citizen of China, petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) denying her motion to reopen her

                                           1
immigration proceedings. For the reasons that follow, we will deny the petition for

review.

       In 2005, an Immigration Judge found Xiu removable from the United States

because she did not have a valid entry or travel document. The Immigration Judge also

denied Xiu‟s applications for asylum, withholding of removal, and relief under the

Convention Against Torture. Xiu had claimed that she feared persecution by the Chinese

police because she had sold Falun Gong materials at her bookstand. The BIA affirmed

the IJ‟s decision and we denied Xiu‟s petition for review. Xiu v. Att‟y Gen., 227 F.

App‟x 113 (3d Cir. 2007) (unpublished decision).

       In 2012, Xiu, through counsel, filed a motion to reopen her immigration

proceedings in order to apply for asylum. Xiu asserted that, since her merits hearing,

conditions in China have changed and there has been increased persecution of Christians

who practice their religion in unauthorized churches. Xiu stated that she began attending

a Christian church in Brooklyn, New York in 2010, that she will not join the government-

sanctioned churches in China because they do not follow the true teachings of the Bible,

and that she will be arrested if she is found in an unauthorized religious gathering.

       The BIA denied the motion as untimely, deciding that Xiu‟s “evidence [was]

inadequate to establish a change in circumstances or country conditions „arising in the

country of nationality‟ so as to create an exception to the time and number limitation for

filing a late motion to reopen to apply for asylum.” A.R. at 4. This petition for review

followed.
                                             2
         We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the denial of a

motion to reopen for abuse of discretion. Khan v. Att‟y Gen., 691 F.3d 488, 495 (3d Cir.

2012).

         A motion to reopen removal proceedings must generally be filed within 90 days of

the final administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i). There is no time limit,

however, on the filing of a motion to reopen to apply for asylum or withholding of

removal “based on changed country conditions arising in the country of nationality or the

country to which removal has been ordered . . . .” Id. § 1229a(c)(7)(C)(ii). Although

Xiu‟s claim is based on a new religious practice or a change in her personal

circumstances, an alien may file an asylum application based on changed personal

circumstances beyond the 90-day statutory period if he or she can also show changed

country conditions. Liu v. Att‟y Gen. 555 F.3d 145, 150 (3d Cir. 2009).

         Xiu asserts in her brief that the BIA failed to address the arguments she raised in

her motion to reopen and that the BIA‟s decision that she did not establish changed

country conditions is devoid of any reasoning. In her motion to reopen, Xiu argued that

three events had occurred since her merits hearing that have led to escalating persecution

of Christians attending unauthorized churches in China and specifically in Fujian

Province, her home province. Xiu explained that increased persecution was the result of

new regulations expanding protection for registered, but not unregistered, religious

groups, the 2008 Olympic Games in China, and protests in the Middle East in 2011. Xiu


                                               3
submitted documentation in support of her motion, which included articles reporting

increased arrests of Christians attending unregistered churches.

       The Government contends that the events referred to by Xiu, and the evidence

submitted in support of her motion, do not establish changed country conditions. The

BIA, however, did not address Xiu‟s arguments and we may only review the BIA‟s

decision based on the rationale it provided. SEC v. Chenery Corp., 332 U.S. 194, 196

(1947); Konan v. Att‟y Gen., 432 F.3d 497, 501 (3d Cir. 2005). The BIA‟s decision does

not discuss whether conditions in China have changed. Instead, the BIA noted the

current conditions in China reflected in U.S. Department of State Reports, which it stated

were the best source of information, and concluded that this evidence did not reflect that

Xiu will suffer mistreatment amounting to persecution. These statements do not explain

the BIA‟s ruling that Xiu did not show changed country conditions excusing her untimely

filing. See Zheng v. Att‟y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (noting authority

providing that the BIA should provide more than conclusory statements so that a court

can discern its reasons for denying relief).

       The Government further argues that any failure by the BIA to explain its decision

that Xiu did not show changed country conditions is harmless in light of its conclusion

that current conditions do not reflect that she will be persecuted. The BIA‟s decision is

ambiguous as to whether it determined that Xiu did not establish the prima facie case for

relief required for reopening or whether it conflated this question with the distinct

question of changed country conditions. See Shardar v. Att‟y Gen., 503 F.3d 308, 312
                                               4
(3d Cir. 2007) (explaining changed country conditions and the merits of a prima facie

case asylum claim are “related but analytically distinct issues”). We conclude that, even

if the BIA conflated these questions, no relief is due because Xiu did not demonstrate that

reopening is warranted on the merits of her asylum claim.

          The BIA‟s conclusion that Xiu did not show that she will suffer mistreatment

amounting to persecution if removed to China is supported by the 2011 Annual Report of

the U.S. Commission on International Religious Freedom and the 2010 International

Religious Freedom Report cited in its decision. As such, a remand on the issue of

changed country conditions would not change the result in her case. We are not

persuaded by Xiu‟s arguments that the BIA failed to assess the evidence under a prima

facie standard or that the BIA did not consider her evidence because it found certain

documents previously available or incomplete.1

          Accordingly, we will deny the petition for review.2




1
 Judge Ambro dissents because, in his view, the BIA‟s decision does not reflect that it
applied the proper standards in evaluating Xiu‟s motion to reopen. Judge Ambro
concludes that, in addition to the lack of explanation on the question of changed country
conditions, the BIA‟s decision does not reflect that it considered whether Xiu established
prima facie eligibility for asylum, which only required showing a reasonable likelihood
that she can establish that she is entitled to relief. Shardar, 503 F.3d at 313. He finds
that, to the extent the BIA held Xiu to a higher burden of proof, the BIA‟s apparent
conflating of the issues of changed country conditions and the merits of her asylum claim
was not harmless and a remand is warranted.
2
    Xiu‟s request for oral argument is denied.
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