     15-2226
     Li v. Whitaker
                                                                                   BIA
                                                                           A073 132 519
                           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 23rd day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHANG LI, AKA QIANG LI,
14                 Petitioner,
15
16                    v.                                         15-2226
17                                                               NAC
18
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Gary J. Yerman, New York, NY.
25
26   FOR RESPONDENT:                  Benjamin C. Mizer, Principal
27                                    Deputy Assistant Attorney General;
28                                    Russel J.E. Verby, Senior
                                           1
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1                                            Litigation Counsel; Elizabeth R.
2                                            Chapman, Trial Attorney, Office of
3                                            Immigration Litigation, United
4                                            States Department of Justice,
5                                            Washington, DC.
6

7            UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11           Petitioner Zhang Li, a native and citizen of the People’s

12   Republic of China, seeks review of a June 16, 2015, decision

13   of the BIA denying his motion to reopen as untimely and number

14   barred.            In re Zhang Li, No. A073 132 519 (B.I.A. June 16,

15   2015).             We   assume    the    parties’    familiarity    with     the

16   underlying facts and procedural history in this case.

17           The applicable standards of review are well established.

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

19   2008).         As an initial matter, contrary to Li’s contention,

20   the agency applied the correct burden when considering his

21   motion to reopen.           See id. at 168; cf. Guan Shan Liao v. U.S.

22   Dep’t         of    Justice,     293    F.3d   61,   68-69   (2d   Cir.    2002)

23   (concluding that BIA did not apply a more stringent burden of

24   proof than a well-founded fear because its language that an
                                                2
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1    applicant       had    not   shown   “that      he     would   be    subject   to

2    persecution upon his return to China . . . simply fault[ed]

3    the applicant for failing to show that any of [his] actions

4    would even potentially subject [him] to persecution upon his

5    return to China.”).

6            Li moved to reopen his exclusion proceedings to apply

7    for asylum, alleging a fear of persecution in China on account

8    of the births of his U.S. citizen children in violation of

9    China’s        population      control       program    and    his    religious

10   practice.        It is undisputed that Li’s motion to reopen was

11   untimely and number barred because it was his second motion

12   to reopen filed almost 20 years after his deportation order

13   became        final.     See    8 U.S.C.       § 1229a(c)(7)(A),        (C)(i);

14   8 C.F.R.        § 1003.2(c)(2).              These     time    and    numerical

15   limitations do not apply, however, if the motion is to reopen

16   proceedings in order to apply for asylum “based on changed

17   country conditions arising in the country of nationality or

18   the country to which removal has been ordered, if such

19   evidence is material and was not available and would not have

20   been discovered or presented at the previous proceeding.”



                                              3
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1    8 U.S.C.        § 1229a(c)(7)(C)(ii);                 see      also         8 C.F.R.

2    § 1003.2(c)(3)(ii).

3            For largely the same reasons set forth in Jian Hui Shao,

4    we find no error in the agency’s determination that Li failed

5    to demonstrate a material change in conditions related to the

6    enforcement of China’s population control program as needed

7    to excuse the untimely and number barred filing of his motion.

8    See 546 F.3d at 159-66, 169-73 (noting that country conditions

9    evidence from 1998 to 2007 indicated that enforcement of the

10   family planning policy was generally lax in Fujian Province,

11   but that there were isolated reports of force being used).

12   Nor     did   the    BIA    err    in    finding      no    material   change    in

13   conditions      as    to     the    Chinese      government’s     treatment      of

14   Christians since Li’s 1994 hearing.                   See In re S-Y-G-, 24 I.

15   & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether

16   evidence      accompanying         a    motion   to   reopen    demonstrates       a

17   material change in country conditions that would justify

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

19   conditions submitted with the motion to those that existed at

20   the time of the merits hearing below.”).



                                                4
     04122018-10
1           For the foregoing reasons, the petition for review is

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

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

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




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