     16-3771
     Xiao v. Whitaker
                                                                                   BIA
                                                                           A072 474 278

                             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 11th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            DENNY CHIN,
 8            SUSAN L. CARNEY,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   TIAN-BAO XIAO,
14            Petitioner,
15
16                      v.                                       16-3771
17                                                               NAC
18   MATTHEW G. WHITAKER, ACTING
19   UNITED STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    John Chang, Esq., New York, NY.
24
25   FOR RESPONDENT:                    Jennifer A. Singer, Trial
26                                      Attorney, Office of Immigration
27                                      Litigation, United States
28                                      Department of Justice, Washington,
29                                      DC; Shelley R. Goad, Assistant
30                                      Director; Chad A. Readler, Acting
31                                      Assistant Attorney General.
32
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 Tian-Bao Xiao, a native and citizen of the

6    People’s Republic of China, seeks review of an October 27,

7    2016 decision of the BIA, denying Xiao’s motion to reopen.

8    In re Tian-Bao Xiao, No. A072 474 278 (B.I.A. Oct. 27, 2016).

9    We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

11       The applicable standards of review are well established.

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

13   2008).     In   his     motion   to    reopen,   Xiao   asserted    that

14   conditions for Christians worsened in China over the years

15   since the agency’s entry of his removal order, excusing his

16   untimely filing of the motion and demonstrating his prima

17   facie eligibility for asylum in light of his conversion to

18   Christianity in the United States.1

19       Xiao     untimely    filed   his   motion    to   reopen   in   2016,

20   nineteen years after his deportation order became final in



     1 Xiao also asserted a fear of forced sterilization under
     China’s family planning policy.     Xiao has abandoned any
     related claim for asylum, however, by not raising it in his
     brief on appeal.   See Yueqing Zhang v. Gonzales, 426 F.3d
     540, 541 n.1, 545 n.7 (2d Cir. 2005).
                                   2
1    1997.          See    8 U.S.C.         § 1229a(c)(7)(C)(i);        8 C.F.R.

2    § 1003.2(c)(2).       The statutory time limitation for filing a

3    motion to reopen does not apply, however, where a petitioner

4    seeks reopening to apply for asylum, and the motion “is based

5    on changed country conditions arising in the country of

6    nationality or the country to which removal has been ordered,

7    if such evidence is material and was not available and would

8    not   have     been   discovered       or   presented   at   the   previous

9    proceeding.”          8 U.S.C.         § 1229a(c)(7)(C)(ii);       8 C.F.R.

10   § 1003.2(c)(3).       The BIA did not err in finding that Xiao

11   failed to demonstrate such changed country conditions.

12         “In determining whether evidence accompanying a motion

13   to    reopen    demonstrates       a    material    change    in   country

14   conditions that would justify reopening, [the BIA] compare[s]

15   the evidence of country conditions submitted with the motion

16   to those that existed at the time of the merits hearing

17   below.”      In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).

18   Xiao failed to submit any evidence detailing the treatment of

19   Christians at the time of his 1995 hearing.                  Such evidence

20   is necessary to make a comparison between those conditions

21   and those prevailing when he filed his motion.                See id.; see

22   also INS v. Abudu, 485 U.S. 94, 110 (1988) (“[T]he moving

23   party   bears     a   heavy   burden.”).         Furthermore,      the   BIA

24   reasonably found that the evidence Xiao submitted, which
                                3
1    consisted of news articles published from 2004 through 2013,

2    were insufficient to establish the requisite material change

3    in conditions.      For example, one article dated May 1, 2013,

4    notes that, since 1999, the United States has designated China

5    a “country of particular concern” under the International

6    Religious Freedom Act, while another reports that the harm

7    Christians in China suffered in 2012 was “not as gravely

8    serious” as that observed 30 years earlier.                    The tension

9    between the two tends to undercut Xiao’s claim.                      Further,

10   although    the    evidence      Xiao      provided     discusses     general

11   interference by the Chinese government with unregistered

12   religious   groups,       it   reports      no   incidents   of     officials

13   targeting Christians in Xiao’s home province of Fujian.                     See

14   Jian Hui Shao, 546 F.3d at 142, 149 (finding no error in the

15   BIA’s    requirement      that    an       applicant     demonstrate     that

16   officials in his local area enforce a government policy in a

17   manner   that     would   give   rise      to    a   well-founded    fear   of

18   persecution when the country conditions evidence demonstrates

19   local variations in enforcement).

20       Accordingly, the BIA reasonably concluded that Xiao did

21   not sufficiently demonstrate a material change in country

22   conditions in the relevant period such as would excuse his

23   motion’s untimely filing.         See 8 U.S.C. § 1229a(c)(7)(C); see


                                            4
1    also In re S-Y-G-, 24 I. & N. Dec. at 257.2

2        Xiao’s request for humanitarian parole did not render

3    him eligible for an exception to the time limitation on his

4    motion,       see      8 U.S.C.      § 1229a(c)(7)(C);           8 C.F.R.

5    § 1003.2(c)(3).         Rather,     “his   motion        to   reopen   for

6    humanitarian parole could only be considered upon exercise of

7    the Agency’s sua sponte authority,” since exercise of that

8    authority is not subject to the time limitation, Mahmood v.

9    Holder, 570 F.3d 466, 469 (2d Cir. 2009); see also 8 C.F.R.

10   § 1003.2(a).        We lack jurisdiction to review the agency’s

11   decision declining to reopen proceedings sua sponte.              See Ali

12   v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).                Although we

13   may remand “where the Agency may have declined to exercise

14   its sua sponte authority because it misperceived the legal

15   background and thought, incorrectly, that a reopening would

16   necessarily    fail,”    Mahmood,    570   F.3d     at    469,   no    such

17   misperception infected the BIA’s decision here.                  The BIA

18   concluded in its discretion that Xiao’s biannual medical

19   appointments to monitor him for recurrence of his cancer did



     2 In view of this conclusion, we do not reach the BIA’s
     alternative basis for denying Xiao’s motion based on his
     religious practice: his failure to establish prima facie
     eligibility for relief. See INS v. Bagamasbad, 429 U.S.
     24, 25 (1976) (“As a general rule courts and agencies are
     not required to make findings on issues the decision of
     which is unnecessary to the results they reach.”).
                                   5
1    not warrant reopening, see In re G-D-, 22 I. & N. Dec. 1132,

2    1133-34 (B.I.A. 1999) (providing that sua sponte authority is

3    “not . . . a general remedy for any hardships created by

4    enforcement of the . . . limits in the motions regulations,

5    but as an extraordinary remedy reserved for truly exceptional

6    situations.”).     We   may   not   revisit   that   conclusion   on

7    petition for review.

8        For the foregoing reasons, the petition for review is

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

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

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

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

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

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

15   34.1(b).

16                            FOR THE COURT:
17                            Catherine O’Hagan Wolfe
18                            Clerk of Court
19




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