         12-4603
         Gao v. Holder
                                                                                       BIA
                                                                               A099 023 587
                          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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XU XUI GAO, AKA XUXUI GAO, AKA
14       XUESUI GAO,
15                Petitioner,
16
17                       v.                                     12-4603
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Gary J. Yerman, New York, New York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Cindy S. Ferrier, Assistant
28                                     Director; Brendan P. Hogan, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Xu Xui Gao, a native and citizen of China, seeks review

 6   of an October 23, 2012, decision of the BIA denying his

 7   motion to reopen.   In re Xu Xui Gao, No. A099 023 587

 8   (B.I.A. Oct. 23, 2012).   We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “‘disfavored.’”     Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15   Doherty, 502 U.S. 314, 322-23 (1992)).    We review the BIA’s

16   factual findings regarding country conditions under the

17   substantial evidence standard.    See Jian Hui Shao v.

18   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

19       An alien must move to reopen within 90 days of the

20   agency’s final administrative decision.   8 U.S.C.

21   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2).   Although Gao’s

22   motion was indisputably untimely because it was filed more



                                   2
 1   than three years after the agency’s final order of removal,

 2   see 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time

 3   limitation for moving to reopen “based on changed country

 4   conditions arising in the country of nationality or the

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

 6   is material and was not available and would not have been

 7   discovered or presented at the previous proceeding,”

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

 9   § 1003.2(c)(3)(ii).

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

11   failed to demonstrate materially changed country conditions

12   excusing the untimely filing of his motion to reopen.     The

13   Country Reports submitted demonstrate that unregistered

14   churches in China faced varying degrees of interference with

15   their religious practices since at least 2005–the date of

16   the earliest Country Report filed in connection with Gao’s

17   2007 merits hearing–and had not materially worsened between

18   2007 and 2011.   See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

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

20   determining whether evidence accompanying a motion to reopen

21   demonstrates a material change in country conditions that

22   would justify reopening, [the BIA] compare[s] the evidence


                                   3
 1   of country conditions submitted with the motion to those

 2   that existed at the time of the merits hearing below.”).

 3   Gao’s claim that the BIA “misconstrued” his motion also

 4   fails, since his conversion to Christianity was a self-

 5   induced change made after he was ordered removed and thus

 6   constitutes changed personal circumstances, as opposed to

 7   changed country conditions.    See Wei Guang Wang v. BIA, 437

 8   F.3d 270, 274 (2d Cir. 2006) (“A self-induced change in

 9   personal circumstances cannot suffice” to establish “changed

10   country conditions”).

11       Contrary to Gao’s argument, the BIA did not abuse its

12   discretion in discounting the unsworn letters submitted with

13   Gao’s motion to reopen.    See Matter of H-L-H- & Z-Y-Z-, 25

14   I. & N. Dec. 209, 215 (BIA 2010) (giving diminished weight

15   to letters from friends because they were written by

16   interested witnesses not subject to cross-examination),

17   abrogated on other grounds by Hui Lin Huang v. Holder, 677

18   F.3d 130 (2d Cir. 2012).    Further, these letters had no

19   bearing on changed country conditions.    See In re S-Y-G-, 24

20   I. & N. Dec. at 253.    Accordingly, the BIA did not abuse its

21   discretion in denying Gao’s motion to reopen as untimely,

22   and we must deny the petition for review.    See 8 U.S.C.

23   § 1229a(c)(7)(C).

                                    4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
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