          United States Court of Appeals
                      For the First Circuit

No. 12-2335

                         YANG ZHAO-CHENG,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                              Before

                        Lynch, Chief Judge,
               Torruella and Lipez, Circuit Judges.


     Scott Bratton and Margaret Wong & Associates Co., LPA on brief
for petitioner.
     Katherine A. Smith, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Derek C. Julius, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.



                          August 1, 2013
          LYNCH, Chief Judge.      Zhao-Cheng Yang,1 a native and

citizen of the People's Republic of China, was denied asylum and

was ordered excluded in 1998.      He did not leave.    In 2012, he

sought to reopen proceedings on the basis of changed circumstances

arising in his country of nationality.        He now petitions for

judicial review of an order from the Board of Immigration Appeals

(BIA) denying his motion to reopen.    Because the BIA did not abuse

its discretion in determining that Yang failed to demonstrate

changed country circumstances, it was not an abuse of discretion

for the BIA to deny his motion to reopen, and, accordingly, we deny

his petition for review.

                           I.   Background

          As a teenager in China, Yang was expelled from school

after protesting the school-attendance fee.    Believing that he had

no future in China, and fearing that his actions and presence would

expose his parents to harassment, Yang hired a smuggler to take him

out of China unlawfully and to bring him to the United States.

Yang attempted to enter the United States in 1996.     He was denied

admission and was placed in exclusion proceedings.2


     1
       Petitioner's name appears in various formulations in the
documents before this Court, but "Yang" seems to be his last name,
and we will refer to him accordingly.
     2
        The Immigration and Naturalization Service commenced
exclusion proceedings with a Form I-122, charging Yang as
excludable as a noncitizen seeking to enter the United States for
the purposes of performing labor without a labor certification
under 8 U.S.C. § 1182(a)(5)(A)(I) and as a noncitizen not in

                                 -2-
              In 1997, Yang filed an asylum application, claiming that,

because he had left China unlawfully, if he returned, he could face

corporal punishment, fines, and incarceration.             He also claimed

that he feared returning because of the Chinese government's forced

family-planning policies.         In 1998, an Immigration Judge (IJ)

denied Yang's asylum application.          Yang appealed to the BIA, but

the appeal was dismissed on December 8, 2000, because Yang failed

to file a brief in support of his appeal.

              In 2012, Yang filed with the BIA a motion to reopen

proceedings.      A motion to reopen generally must be filed within

ninety days of the final administrative decision.                See 8 C.F.R.

§ 1003.2(c)(2), (3).       The final administrative decision in this

case was the dismissal of Yang's appeal on December 8, 2000, twelve

years before he filed his motion to reopen.             Yang contended that

his motion was not subject to the ninety-day rule because 8 C.F.R.

§ 1003.2(c)(3)(ii) permits the filing of a motion to reopen more

than ninety days after the final administrative decision if the

motion   is     brought   to   reapply   for   asylum    based    on   changed

circumstances arising in the country of nationality, and if the




possession   of   a  valid   entry   document,   under  8   U.S.C.
§ 1182(a)(7)(A)(i)(I). Subsequent to Yang's exclusion proceedings,
the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA), Pub. L. No. 104-208, div. C., 11 Stat. 3009-546
(codified as amended in scattered sections of 8 and 18 U.S.C.)
replaced exclusion proceedings with removal proceedings. See 8
U.S.C. § 1229a(e)(2).

                                     -3-
movant has material evidence that was not available and could not

have been discovered or presented at the previous hearing.

          Specifically, Yang claimed that he had converted to

Christianity in 2011 and that, since the time of his 1998 hearing,

circumstances surrounding the practice of Christianity in China had

changed -- namely, persecution of unregistered3 Christian groups

had increased.    Yang asserted that he would continue, on return to

China, to practice his religion by attending an unregistered

"house" church and by spreading the gospel to others. He would not

attend a registered, government-sanctioned church because he does

not believe that such churches truly teach religion.      In light of

the   Chinese    government's   persecution   of   unregistered-church

members, he asserted he would face a constant threat of punishment.

          The BIA determined that Yang had failed to establish

changed circumstances in China,4 and so his untimely motion did not



      3
        The Chinese government requires all religious groups to
register with government religious affairs bureaus and to operate
under    the  supervision   of  official  "patriotic"   religious
organizations.    See, e.g., U.S. Dep't of State, China Country
Report on Human Rights Practices for 1997 (1998), available at
http://www.state.gov/www/global/human_rights/1997_hrp_report/chin
a.html.
      4
       Before addressing Yang's evidence of changed circumstances,
the BIA noted -- correctly -- that Yang's changed personal
circumstances, his 2011 conversion to Christianity, did not
constitute changed country circumstances and thus could not form
the basis of his motion. See, e.g., Larngar v. Holder, 562 F.3d
71, 77 (1st Cir. 2009) (affirming that "a change in personal
circumstances should not qualify as a change in country
circumstances").

                                  -4-
qualify for the exception to the ninety-day rule. Accordingly, the

BIA   denied    the    motion   to    reopen.     This   petition   for   review

followed.

                                II.    Discussion

            "We review the denial of a motion to reopen for abuse of

discretion."      Romer v. Holder, 663 F.3d 40, 42 (1st Cir. 2011).

Yang argues it was an abuse of discretion for the BIA to conclude

that he had failed to establish changed circumstances in China.

Not so.

            Yang bore the burden of establishing that circumstances

in China surrounding the persecution of unregistered Christian

groups changed between 1998 and 2012.             See Larngar v. Holder, 562

F.3d 71, 76 (1st Cir. 2009) ("It is well-established that an

applicant      bears   the   burden     of    establishing   changed      country

circumstances for purposes of § 1003.2(c)(3)(ii)."); 8 C.F.R.

§ 1003.2(c)(1). To satisfy that burden, Yang needed to provide the

BIA information regarding the level of persecution of unregistered

Christian groups in China in both 1998 and 2012.                    He provided

evidence that persecution in 20125 was severe, rising to the level

of detentions and beatings of unregistered-church members, and

referred to his filings in 1998.              The BIA determined that he had




      5
       To be precise, when Yang filed his motion to reopen in 2012,
he submitted the most recent evidence available, which consisted of
reports from 2011 and 2010.

                                        -5-
failed to provide evidence that would support a finding of changed

circumstances in this time period.

            The BIA first considered a Human Rights Watch World

Report for 1997, which Yang had submitted at his 1998 hearing. The

BIA noted that the report did not cover the relevant time period,

for it reflected the circumstances in 1996. Even if the report had

reflected the circumstances in 1998, the BIA determined that the

report would not have supported a finding that the level of

persecution facing unregistered Christian groups in China had

changed between 1998 and 2012. The report detailed a campaign that

forced all churches to register or face dissolution, resulting in

beating and harassment of congregants, closing of churches, and

numerous arrests, fines, and imprisonments.                The evidence Yang

submitted of circumstances prevailing in 2012 details this same

type of severe persecution.

            The    BIA   next   discussed    the    fact     that    Yang    cited

portions -- but did not provide to the BIA the full versions -- of

U.S. State Department Country Reports on China from 1997 through

2009.    The BIA declined to take administrative notice of the full

reports, noting that Yang bore the burden of submitting them. Yang

argues that the BIA abused its discretion in refusing to take

notice of the reports in their entirety, since he selectively

quoted   from     them   in   his   motion   to    reopen.      He    is    wrong.

"[A]lthough the BIA is empowered to take administrative notice of


                                      -6-
'commonly known facts such as current events or the contents of

official documents,' it is not compelled to do so."              Kaihua Huang

v. Holder, 312 F. App'x 420, 422 (2d Cir. 2009) (citation omitted)

(quoting   8   C.F.R.    §   1003.1(d)(3)(iv))       (citing   Hoxhallari    v.

Gonzales, 468 F.3d 179, 186 n.5 (2d Cir. 2006) (per curiam)). That

these reports are available on the Internet does not relieve Yang

of his burden to submit to the BIA evidence supporting his claim.

See 8 C.F.R. § 1003.2(c)(1) ("A motion to reopen proceedings . . .

shall be supported by affidavits or other evidentiary material.").

             Yang's motion stressed the fact that, according to the

2001 report, official repression of unregistered Christian groups

had "eased somewhat," while reports from later years showed an

increase in such repression. That religious persecution had "eased

somewhat" by 2001 told the BIA nothing about the persecution that

existed in 1998 -- the relevant year.            Importantly, as the BIA

observed, what this statement demonstrates is that slight temporal

fluctuation in the level of ever-prevailing persecution is, itself,

a continuing circumstance -- not a "changed circumstance[]" as

required by the regulation.       See 8 C.F.R. § 1003.2(c)(3)(ii).          The

BIA did not abuse its discretion in concluding that the State

Department     reports   did    not   support    a     finding   of   changed

circumstances.

             The BIA lastly considered the 2004 implementation of a

new religious regulation program in China, the State Administration


                                      -7-
for Religious Affairs, which Yang had cited in his motion. The BIA

permissibly determined that, according to the evidence presented by

Yang, the new regulations did not alter the amount of persecution

faced by unregistered Christian groups, as the same levels of

persecution persisted both before and after 2004.          Yang has given

us no reason to conclude that this determination by the BIA was an

abuse of discretion.

            In his brief to this Court, Yang references one further

source of information: the U.S. State Department Country Report on

China from 1995 from his original asylum application.         That report

describes the circumstances that prevailed in China years before

Yang's 1998 hearing.      The report also does not indicate that those

circumstances were materially different from circumstances in 2012.

In   an   attempt   to   downplay   the   level   of   persecution   facing

unregistered Christian groups in the past, Yang claims that the

report states merely that the Chinese government "intermittently

harassed unregistered churches."          But this is not an accurate

characterization of the report, which, in actuality, notes that

unregistered Christian churches were subject to raids and forced

closings, and their members were subject to detention.

            There was no need for the BIA to reach the issue of

whether Yang made out a prima facie case for eligibility for

asylum.    See, e.g., Gi Kuan Tsai v. Holder, 505 F. App'x 4, 9 (1st

Cir. 2013) (stating BIA need not address whether noncitizen made


                                    -8-
prima facie case for eligibility for asylum where BIA concluded in

its   discretion   that   noncitizen   failed   to   demonstrate   changed

circumstances, thus failing to make showing necessary to file

untimely motion to reopen).

                            III.   Conclusion

           For the reasons stated above, Yang's petition for review

is DENIED.




                                   -9-
