         13-1661
         Liu v. Holder
                                                                                       BIA
                                                                               A078 161 283
                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of June, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAO FANG LIU, AKA SHAO FUN LUI,
14                Petitioner,
15
16                       v.                                     13-1661
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary J. Yerman, Yerman & Associates,
24                                     LLC, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; John W. Blakeley, Senior
28                                     Litigation Counsel; Stephen M.
29                                     Elliott, Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Xiao Fang Liu, a native and citizen of

 6   China, seeks review of an April 16, 2013 decision of the BIA

 7   denying her untimely and number-barred motion to reopen.      In

 8   re Xiao Fang Liu, No. A078 161 283 (B.I.A. Apr. 16, 2013).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).   An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered and may file only one

17   such motion.   See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

18   § 1003.2(c)(2).   There is no dispute that Liu’s 2012 motion

19   was untimely and number barred because she previously sought

20   reopening in 2010 and her order of removal became final in

21   2005.   See 8 U.S.C. § 1101(a)(47)(B).   Liu contends,

22   however, that her recent conversion to Christianity in the

23   United States, worsened conditions for underground church

                                    2
 1   members in China, and heightened enforcement of China’s

 2   family planning laws constitute materially changed

 3   conditions excusing her motion from the applicable time and

 4   number limitations.

 5       The BIA did not abuse its discretion in denying Liu’s

 6   motion for failure to demonstrate a material change in

 7   country conditions.   Initially, the BIA correctly determined

 8   that Liu’s religious conversion in the United States was a

 9   self-induced change in personal circumstances rather than a

10   change in country conditions.       See Wei Guang Wang v. BIA,

11   437 F.3d 270, 273-74 (2d Cir. 2006).      The BIA also

12   reasonably determined that Liu was unable to establish

13   materially changed conditions because she failed to support

14   her motion with any evidence of conditions for Chinese

15   Christians at the time of her 2004 merits hearing.       See

16   Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007)

17   (“In determining whether evidence accompanying a motion to

18   reopen demonstrates a material change in country conditions

19   that would justify reopening, [the BIA] compare[s] the

20   evidence of country conditions submitted with the motion to

21   those that existed at the time of the merits hearing

22   below.”).   Lastly, the BIA reasonably determined that


                                     3
 1   conditions in China had not materially changed because the

 2   evidence in the record reflected ongoing repression of

 3   underground churches since at least 1998.   See Matter of

 4   S-Y-G-, 24 I. & N. Dec. at 257 (observing that “[c]hange

 5   that is incremental or incidental does not meet the

 6   regulatory requirements for late motions” to reopen).

 7   Because the BIA’s inference that conditions in China have

 8   not materially changed “is tethered to the evidentiary

 9   record, we will accord deference to the finding.”     See Siewe

10   v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007).

11       The BIA also properly found that Liu failed to

12   demonstrate materially changed country conditions on the

13   basis of her individualized family planning evidence.     See

14   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

15   Cir. 2006) (observing that the weight accorded to the

16   applicant’s evidence in immigration proceedings lies largely

17   within the discretion of the agency).   Liu’s contention that

18   the BIA erred by discounting her family planning notice as

19   unauthenticated under 8 C.F.R. § 1287.6 is misplaced because

20   the notice was not authenticated by any means.   See Cao He

21   Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-06 (2d Cir.

22   2005) (noting that while the agency may err in declining to


                                  4
 1   consider a document solely for a failure to authenticate

 2   under 8 C.F.R. § 1287.6, the agency may nevertheless decline

 3   to consider a document that is not authenticated by any

 4   means).   In addition, the BIA reasonably determined that

 5   Liu’s letters from Chinese nationals, attesting to forced

 6   sterilizations after the birth of children in China, did not

 7   establish materially changed conditions because they did not

 8   discuss similarly situated individuals, i.e., Chinese

 9   nationals returning with U.S. citizen children.     See Jian

10   Hui Shao, 546 F.3d at 160-61, 170-72.

11       Lastly, we decline to consider Liu’s argument that she

12   established her prima facie eligibility for relief, which

13   the BIA did not reach.   See INS v. Bagamasbad, 429 U.S. 24,

14   25 (1976) (“As a general rule courts and agencies are not

15   required to make findings on issues the decision of which is

16   unnecessary to the results they reach.”).

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot.     Any pending request for

22

23
                                   5
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7
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