     15-4031
     Wu v. Whitaker
                                                                                   BIA
                                                                           A076 100 741

                           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 18th day of December, two thousand
 5   eighteen.
 6
 7   PRESENT:
 8            JON O. NEWMAN,
 9            DENNIS JACOBS,
10            PIERRE N. LEVAL,
11                 Circuit Judges.
12   _____________________________________
13
14   XIN ZHAO WU, AKA XIN ZAO WU,
15            Petitioner,
16
17                    v.                                         15-4031
18                                                               NAC
19   MATTHEW G. WHITAKER, ACTING
20   UNITED STATES ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Theodore N. Cox, New York, NY.
25
26   FOR RESPONDENT:                  Benjamin C. Mizer, Principal
27                                    Deputy Assistant Attorney General;
28                                    Holly M. Smith, Senior Litigation
29                                    Counsel; Rachel L. Browning, Trial

      06152016-10
1                                   Attorney, Office of Immigration
2                                   Litigation, United States
3                                   Department of Justice, Washington,
4                                   DC.
5
6            UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10           Petitioner Xin Zhao Wu, a native and citizen of the

11   People’s Republic of China, seeks review of a November 23,

12   2015, BIA decision denying his motion to reopen his removal

13   proceedings.       In re Xin Zhao Wu, No. A076 100 741 (B.I.A.

14   Nov. 23, 2015).       We assume the parties’ familiarity with the

15   underlying facts and procedural history in this case.

16           The applicable standards of review are well established.

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

18   2008).       Wu moved to reopen his removal proceedings to present

19   evidence of his claimed fear of persecution based on the

20   births of his children in the United States purportedly in

21   violation of China’s population control program and based on

22   his practice of Christianity.

23           It is undisputed that Wu’s motion to reopen was

24   untimely because it was filed more than fifteen years after

25   an immigration judge ordered him removed in absentia.       See
                                   2
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1    8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).        The

2    time limitation does not apply if the motion is to reopen

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

4    country conditions arising in the country of nationality or

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

6    evidence is material and was not available and would not

7    have been discovered or presented at the previous

8    proceeding.”     8 U.S.C. § 1229a(c)(7)(C)(ii); see also

9    8 C.F.R. § 1003.2(c)(3)(ii).

10           We find no error in the BIA’s determination that Wu

11   failed to demonstrate materially changed country conditions

12   related to the enforcement of the family planning policy.

13   See Jian Hui Shao, 546 F.3d at 159-66, 169-73 (agreeing

14   with the agency’s determination that evidence of isolated

15   incidents involving the use of force were insufficient in

16   light of significant country conditions evidence reflecting

17   the use of fines and economic incentives rather than force

18   to enforce the family planning policy).     Nor did the BIA

19   err in finding that Wu’s evidence revealed that the Chinese

20   government has continuously repressed unregistered

21   religious groups since before Wu’s 2000 proceedings and

22   that the repression has varied in degree from year to year

                                     3
     07102018-4
1    and by region.      See In re S-Y-G-, 24 I. & N. Dec. 247, 253

2    (BIA 2007) (“In determining whether evidence accompanying a

3    motion to reopen demonstrates a material change in country

4    conditions that would justify reopening, [the agency]

5    compare[s] the evidence of country conditions submitted

6    with the motion to those that existed at the time of the

7    merits hearing below.”); see also id. at 257 (“Change that

8    is incremental or incidental does not meet the regulatory

9    requirements for late motions . . . .”).

10           Accordingly, because Wu did not establish a material

11   change in conditions in China, the BIA did not abuse its

12   discretion in denying his motion to reopen as untimely.      See

13   8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c).      We do not

14   reach the BIA’s alternative basis for denying Wu’s motion—

15   his failure to establish his prima facie eligibility for

16   relief.      See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As

17   a general rule courts and agencies are not required to make

18   findings on issues the decision of which is unnecessary to

19   the results they reach.”).

20           For the foregoing reasons, the petition for review is

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

22   for a stay of removal in this petition is DISMISSED as moot.

                                      4
     07102018-4
1   The pending request for oral argument in this petition is

2   DENIED in accordance with Federal Rule of Appellate Procedure

3   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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