     15-1225
     Pan v. Lynch
                                                                                       BIA
                                                                               A087 462 992
                         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   8th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            RICHARD C. WESLEY,
 8            PETER W. HALL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO SHI PAN,
14            Petitioner,
15
16                  v.                                               15-1225
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Gary J. Yerman, New York, N.Y.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Cindy
27                                       Ferrier,     Assistant     Director;
28                                       Kimberly A. Burdge, Trial Attorney;
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, D.C.
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 Xiao Shi Pan, a native and citizen of the

6    People’s Republic of China, seeks review of a March 19, 2015,

7    decision of the BIA denying his untimely motion to reopen.   In

8    re Xiao Shi Pan, No. A087 462 992 (B.I.A. Mar. 19, 2015).    We

9    assume the parties’ familiarity with the underlying facts and

10   procedural history in this case.

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

12   of discretion.”   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

13   2006).    When the BIA considers relevant evidence of country

14   conditions in evaluating a motion to reopen, we review the BIA’s

15   factual findings under the substantial evidence standard.

16   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

17       It is undisputed that Pan’s 2015 motion to reopen was

18   untimely because his order of removal became final in 2011.

19   8 U.S.C. § 1229a(c)(7)(C)(i) (setting 90-day period for filing

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

21   § 1101(a)(47)(B)(i).    Although this time limitation may be

22   excused if the motion “is based on changed country conditions

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1    arising in the country of nationality or the country to which

2    removal has been ordered, if such evidence is material and was

3    not available and would not have been discovered or presented

4    at the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii), the

5    BIA    reasonably    concluded   that   Pan   failed    to   establish

6    materially changed conditions for house-church Christians in

7    China.

8           “In determining whether evidence accompanying a motion to

9    reopen demonstrates a material change in country conditions

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

11   of country conditions submitted with the motion to those that

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

13   24 I. & N. Dec. 247, 253 (B.I.A. 2007).           The evidence here

14   reasonably    demonstrates    that    the   Chinese    government   has

15   continued to target unregistered Christian groups since the

16   time of Pan’s March 2010 merits hearing; it does not indicate

17   that    conditions   have   worsened    for   individuals    similarly

18   situated to Pan.      See Xiao Ji Chen v. U.S. Dep’t of Justice,

19   471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight

20   accorded to evidence lies largely within the discretion of the

21   agency).     According to the 2007 State Department Profile of

22   Asylum Claims and Country Conditions, which reflects conditions

                                       3
1    at the time of Pan’s 2010 hearing, Chinese security officials

2    used    threats,     detention,   and    imprisonment    to   target

3    unregistered religious leaders and their followers.              The

4    evidence submitted in support of Pan’s motion, including the

5    2012 and 2013 Annual Reports of the Congressional-Executive

6    Commission on China and the U.S. State Department’s 2013 Annual

7    Report of International Religious Freedom, reflect that these

8    practices have continued.

9           Although Pan cites to these very reports in his brief, he

10   insists that the BIA wholly mischaracterized the evidence by

11   concluding    that   it   demonstrated   continued,     rather   than

12   worsened, conditions.     To support this assertion, Pan points

13   to the U.S. State Department’s 2011 International Religious

14   Freedom Report, which describes a “marked deterioration during

15   2011 in the [Chinese] government’s respect for and protection

16   of religious freedom.”     That “marked deterioration,” however,

17   concerned Buddhists in the Tibetan Autonomous Region; the

18   following page of that same report states that “[c]rackdowns

19   on Christian house churches continued.”

20          Last, Pan’s assertions that the BIA completely ignored

21   relevant sections of the country reports, wholly discounted the

22   ChinaAid reports, and did not properly weigh his evidence, are

                                       4
1    misplaced.      We presume that the agency “has taken into account

2    all of the evidence before [it], unless the record compellingly

3    suggests   otherwise,”     and    the    weight     accorded   to    country

4    conditions evidence “lies largely within the discretion” of the

5    agency.    Xiao Ji Chen, 471 F.3d at 337 n.17, 342 (alteration

6    and   internal    quotation      marks   omitted).       Here,      the   BIA

7    explicitly discussed the country conditions evidence in its

8    decision, and, thus, the record does not compellingly suggest

9    that it was ignored.     If, as here, “the BIA ‘has given reasoned

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

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

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

13   437 F.3d 270, 275 (2d Cir. 2006) (quoting Xiao Ji Chen, 434 F.3d

14   at 160 n.13).      The task of resolving conflicts in the record

15   evidence, moreover, lies “largely within the discretion of the

16   agency.”     Jian Hui Shao, 546 F.3d at 171.            The BIA was also

17   entitled   to    find   Pan’s    evidence,    including    the      ChinaAid

18   reports,   immaterial     in     light   of   the    underlying     adverse

19   credibility determination.         Kaur v. BIA, 413 F.3d 232, 234 (2d

20   Cir. 2005) (finding no abuse of discretion in BIA’s ruling that

21   evidence was immaterial and thus insufficient to warrant




                                         5
1    reopening when it failed to rebut the underlying adverse

2    credibility determination).

3         Given the evidence of continued conditions, the BIA

4    reasonably concluded that Pan did not establish a material

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

6    the BIA did not abuse its discretion in denying Pan’s motion

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

8    8 C.F.R. § 1003.2(c)(2).

9         For the foregoing reasons, the petition for review is

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

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

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

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

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

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

16   34.1(b).

17                                  FOR THE COURT:
18                                  Catherine O’Hagan Wolfe, Clerk




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