     16-2714
     Wang v. Sessions
                                                                                       BIA
                                                                               A077 977 498
                        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   5th day of December, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            JOSÉ A. CABRANES,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   JIN SHUAN WANG, AKA YAN SHI YU,
14                 Petitioner,
15            v.                                                     16-2714
16                                                                   NAC
17   JEFFERSON B. SESSIONS III,
18   UNITED STATES ATTORNEY GENERAL,
19                 Respondent.
20   _____________________________________
21
22   FOR PETITIONER:                     Gary J. Yerman, New York, NY.
23
24   FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
25                                       Attorney General; Janice K. Redfern;
26                                       Lindsay B. Glauner, Senior
27                                       Litigation Counsel, Office of
28                                       Immigration Litigation, United
29                                       States Department of Justice,
30                                       Washington, DC.
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 is

4    DENIED.

5          Petitioner Jin Shuan Wang, a native and citizen of the

6    People’s Republic of China, seeks review of a July 14, 2016,

7    decision of the BIA denying Wang’s untimely motion to reopen

8    proceedings to apply for asylum, withholding of removal, and

9    relief under the Convention Against Torture (“CAT”).      In re Jin

10   Shuan Wang, No. A077 977 498 (B.I.A. July 14, 2016).      We assume

11   the   parties’   familiarity   with   the   underlying   facts   and

12   procedural history in this case.

13         In lieu of filing a brief, the Government moves for summary

14   denial of Wang’s petition for review.          Summary denial is

15   warranted only if a petition is frivolous, Pillay v. INS, 45

16   F.3d 14, 17 (2d Cir. 1995), and Wang has filed his merits brief.

17   Accordingly, we treat the Government’s motion as a response to

18   that brief, and deny the petition.

19         We review the BIA’s denial of Wang’s motion to reopen for

20   abuse of discretion, and review the BIA’s factual findings

21   regarding country conditions under the substantial evidence
                                     2
1    standard.   Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d

2    Cir. 2008); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

3        It is undisputed that Wang’s 2016 motion to reopen was

4    untimely because his removal order became final in 2008.     See

5    8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for

6    motions to reopen); 8 C.F.R. § 1003.2(c)(2)(same).      Although

7    this time limitation does not apply if the motion is “based on

8    changed country conditions” since the time of the original

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

10   § 1003.2(c)(3)(ii), as discussed below, the BIA’s conclusion

11   that Wang failed to establish such a change is supported by

12   substantial evidence, see Jian Hui Shao, 546 F.3d at 169.

13        The BIA reasonably concluded that Wang did not establish

14   a material change in country conditions, given that a 2005 State

15   Department report in the record reflected that members of

16   unregistered churches in China faced mistreatment including

17   arrest, imprisonment, interrogation, and in some cases, “severe

18   physical abuse.”   U.S. State Dep’t, China: Profile of Asylum

19   Claims and Country Conditions 5-6 (Oct. 2005); Jian Hui Shao,

20   546 F.3d at 157.    Accordingly, Wang’s more recent evidence

21   showing arrests and beatings of unregistered church members did
                                    3
1    not reflect any material change in conditions.        In re S-Y-G-,

2    24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether

3    evidence   accompanying   a   motion   to   reopen   demonstrates   a

4    material change in country conditions that would justify

5    reopening, [the agency] compare[s] the evidence of country

6    conditions submitted with the motion to those that existed at

7    the time of the merits hearing below.”).        Given the evidence

8    of a continuation of conditions, the BIA did not abuse its

9    discretion in denying Wang’s motion to reopen as untimely.      See

10   8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).

11       Because the BIA’s timeliness ruling is dispositive, we do

12   not reach the BIA’s alternative holding regarding Wang’s prima

13   facie eligibility for asylum, withholding of removal, or CAT

14   relief.    8 U.S.C. § 1229a(c)(7)(C)(i); INS v. Bagamasbad, 429

15   U.S. 24, 25 (1976).

16       For the foregoing reasons, the petition for review is

17   DENIED.    As we have completed our review, the Government’s

18   motion for summary denial and Petitioner’s stay motion are

19   DISMISSED as moot.    Any pending request for oral argument in

20   this petition is DENIED in accordance with Federal Rule of


                                      4
1   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

2   34.1(b).

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk




                                 5
