     15-2116
     Lin v. Yates
                                                                                       BIA
                                                                               A076 505 806

                         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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   24th day of January , two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DEBRA ANN LIVINGSTON,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   QIN DI LIN,
14            Petitioner,
15
16                  v.                                               15-2116
17                                                                   NAC
18   SALLY Q. YATES, UNITED STATES
19   ACTING ATTORNEY GENERAL,
20            Respondent.1
21   _____________________________________
22
23   FOR PETITIONER:                     Robert J. Adinolfi, New York, N.Y.
24
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General; Kiley
28                                       Kane, Senior Litigation Counsel;
29                                       Annette M. Wietecha, Attorney,

     1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Acting Attorney General Sally Q. Yates is automatically
     substituted for former Attorney General Loretta E. Lynch as
     Respondent.
1                               Office of Immigration Litigation,
2                               United States Department of Justice,
3                               Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Qin Di Lin, a native and citizen of the People’s

10   Republic of China, seeks review of a June 15, 2015, decision

11   of the BIA denying his untimely motion to reopen.     In re Qin

12   Di Lin, No. A076 505 806 (B.I.A. June 15, 2015).   We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

15       “We review the denial of motions to reopen immigration

16   proceedings for abuse of discretion.”     Ali v. Gonzales, 448

17   F.3d 515, 517 (2d Cir. 2006).   When the BIA considers relevant

18   evidence of country conditions in evaluating a motion to reopen,

19   we review the BIA’s factual findings under the substantial

20   evidence standard.   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

21   (2d Cir. 2008).

22       It is undisputed that Lin’s 2014 motion to reopen was

23   untimely because his order of removal was final in 2003.

24   8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing

                                     2
1    motion to reopen); 8 C.F.R. § 1003.2(c)(2) (same); see 8 U.S.C.

2    § 1101(a)(47)(B)(i) (defining finality).   This time limitation

3    may be excused if the motion requests reopening to apply for

4    asylum and “is based on changed country conditions arising in

5    the country of nationality or the country to which removal has

6    been ordered, if such evidence is material and was not available

7    and would not have been discovered or presented at the previous

8    proceeding.”   8 U.S.C. § 1229a(c)(7)(C)(ii).       Here, the BIA

9    reasonably concluded that Lin failed to establish a material

10   change in conditions for Christians in China.

11       “In determining whether evidence accompanying a motion to

12   reopen demonstrates a material change in country conditions

13   that would justify reopening, [the BIA] compare[s] the evidence

14   of country conditions submitted with the motion to those that

15   existed at the time of the merits hearing below.”    In re S-Y-G-,

16   24 I. & N. Dec. 247, 253 (B.I.A. 2007).    The BIA’s conclusion

17   that conditions had not changed is supported by substantial

18   evidence.   See Jian Hui Shao, 546 F.3d at 169.        As the BIA

19   found, the reports from 2002 and 2013 reflected that the

20   government continued to target Christian groups that practiced

21   in underground or house churches.   For example, the 2002 State

22   Department International Religious Freedom Report, stated that

                                    3
1    the Chinese government “continued its crackdown on unregistered

2    churches.”    The evidence Lin submitted in support of reopening,

3    including the 2013 Annual Report of the Congressional-Executive

4    Commission on China and the State Department’s 2013 Annual

5    Report of International Religious Freedom, reflect that these

6    practices have continued.

7        Lin’s assertions that the BIA “cherry picked” excerpts from

8    the evidence and wholly discounted the 2013 ChinaAid report are

9    misplaced.        “[W]e presume that [the agency] has taken into

10   account all of the evidence before [it], unless the record

11   compellingly suggests otherwise,” and the weight accorded to

12   country     conditions     evidence     “lies    largely   within   the

13   discretion” of the agency.         Xiao Ji Chen v. U.S. Dep’t of

14   Justice, 471 F.3d 315, 336 n.17 & 342 (2d Cir. 2006) (alteration

15   and internal quotation marks omitted).             The BIA explicitly

16   discussed much of the country conditions evidence, and, thus,

17   the record does not compellingly suggest that it ignored any

18   evidence.     The BIA was not required to parse the ChinaAid

19   report:     if,     as   here,   “the   BIA     ‘has   given   reasoned

20   consideration . . . and made adequate findings,’” it need not

21   “‘expressly parse or refute on the record’ each . . . piece of

22   evidence offered by the petitioner.”            Wei Guang Wang v. BIA,

                                         4
1    437 F.3d 270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen v. U.S.

2    Dep’t of Justice, 434 F.3d 144, 160 n.13 (2d Cir. 2006)).              Lin

3    himself cherry picked one page of the ChinaAid report which

4    stated that in “[i]n 2013, government persecution of Christians

5    and churches in China worsened significantly,” but ignored the

6    fact that the report identified no incidents of persecution in

7    his home province of Fujian.          See Jian Hui Shao, 546 F.3d at

8    171   (explaining     that   agency       has   discretion   “to   resolve

9    conflicts      in   record   evidence”      and   concluding    that   BIA

10   identified substantial evidence where it “did not overlook any

11   record evidence favorable to the petitioner”).

12         Given the evidence of a continuation of conditions, the BIA

13   reasonably concluded that Lin did not establish a material

14   change in the conditions for Christians in China.            Accordingly,

15   the BIA did not abuse its discretion in denying Lin’s motion

16   to    reopen   as   untimely.     See      8 U.S.C.   § 1229a(c)(7)(C);

17   8 C.F.R. § 1003.2(c)(2).

18         Because the BIA’s timeliness ruling is dispositive, we

19   decline to reach the issue of whether Lin has established prima

20   facie eligibility for relief.         INS v. Abudu, 485 U.S. 94, 104-05

21   (1988) (observing that the agency may deny an untimely motion

22   to reopen for failure to demonstrate materially changed country

                                           5
1    conditions or prima facie eligibility for the underlying

2    substantive relief sought); INS v. Bagamasbad, 429 U.S. 24, 25

3    (1976) (“As a general rule courts and agencies are not required

4    to make findings on issues the decision of which is unnecessary

5    to the results they reach.”).

6        For the foregoing reasons, the petition for review is

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

8    that the Court previously granted in this petition is VACATED,

9    and any pending motion for a stay of removal in this petition

10   is DISMISSED as moot.    Any pending request for oral argument

11   in this petition is DENIED in accordance with Federal Rule of

12   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

13   34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16




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