         11-2021-ag
         Li v. Holder
                                                                                       BIA
                                                                               A072 836 724
                         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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 6th day of February, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                GUIDO CALABRESI,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _______________________________________
13
14       HUI LI, AKA, CHENG YI YONG,
15                Petitioner,
16
17                      v.                                      11-2021-ag
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:               Tony West, Assistant Attorney
27                                     General; Derek C. Julius, Senior
28                                     Litigation Counsel; Katherine A.
29                                     Smith, Trial Attorney, Kira
 1                             Hettinger, Law Clerk, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   review is DENIED.

 9       Hui Li, a native and citizen of the People’s Republic

10   of China, seeks review of an April 22, 2011, decision of the

11   BIA denying his motion to reopen.      In re Hui Li, No. A072

12   836 724 (B.I.A. Apr. 22, 2011).     We assume the parties’

13   familiarity with the underlying facts and procedural history

14   of this case.

15       We review the BIA’s denial of Li’s motion to reopen for

16   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

17   Cir. 2006).     When, as here, the BIA considers relevant

18   evidence of country conditions in evaluating the motion to

19   reopen, we review the BIA’s factual findings under the

20   substantial evidence standard.      See Jian Hui Shao v.

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

22       Normally, an alien may file only one motion to reopen

23   and must do so within 90 days of the agency’s final

24   administrative decision.     8 U.S.C. § 1229a(c)(7)(A),(C); 8

                                     2
 1   C.F.R. § 1003.2(c)(2).    However, there is no time or

 2   numerical limitation for filing a motion to reopen if it is

 3   “based on changed country conditions arising in the country

 4   of nationality or the country to which removal has been

 5   ordered, if such evidence is material and was not available

 6   and would not have been discovered or presented at the

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

 8   also 8 C.F.R. § 1003.2(c)(3)(ii).

 9       Here, the BIA did not abuse its discretion in finding

10   that Li’s newly commenced practice of Christianity

11   constituted a change in his personal circumstances, rather

12   than a change in country conditions sufficient to excuse the

13   applicable time and numerical limitations.     See Li Yong

14   Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

15   Cir. 2005) (explaining that a change in “personal

16   circumstances in the United States” did not constitute a

17   change in country conditions excusing the filing deadline

18   for motions to reopen).    Moreover, the BIA did not abuse its

19   discretion in finding that Li did not establish a material

20   change in conditions in China because he failed to submit

21   any evidence in support of his motion describing China’s

22   treatment of Christians and underground church members at


                                     3
 1   the time of his 2002 deportation proceedings.       See Matter of

 2   S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (In evaluating

 3   evidence of changed country conditions, the BIA “compare[s]

 4   the evidence of country conditions submitted with the motion

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

 6   below”). Indeed, while Lin submitted numerous governmental

 7   and organizational reports and newspaper articles from 2009

 8   describing China’s human rights practices and its treatment

 9   of Christians and house church members, he did not submit

10   any reports or articles that described the Chinese

11   government’s treatment of those groups prior to 2009.

12   Although Li urges this Court to compare the 2009 U.S.

13   Department of State Country Report for China (“2009 Country

14   Report”) that he submitted to the BIA with earlier State

15   Department reports, and argues that the 2009 Country Report

16   “reflect[s] a worsening of repression” as compared to

17   previous years, we decline to consider these earlier reports

18   because they were not part of the administrative record.

19   See 8 U.S.C. § 1252(b)(4)(A).       Accordingly, the BIA did not

20   abuse its discretion in finding that Li failed to

21   demonstrate any material change in country conditions

22   excusing the untimely and number-barred filing of his 2010

23   motion to reopen.   See Matter of S-Y-G-, 24 I. & N. Dec. at

24   253.

                                     4
 1       Furthermore, the BIA reasonably concluded that the

 2   country conditions evidence Li submitted did not demonstrate

 3   a material change in country conditions because the 2009

 4   Country Report and the 2009 Congressional-Executive

 5   Commission on China Annual Report (“Congressional-Executive

 6   Report”) indicated that the Chinese government’s oppression

 7   of unregistered Christians reflected a continuation of its

 8   decades-long effort to suppress unauthorized religious

 9   groups, rather than an intensification of its harassment and

10   persecution of unregistered Christians.   See 8 U.S.C.

11   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

12   Moreover, given the BIA’s explicit references to the

13   documentation Li submitted with his motion to reopen, we

14   cannot conclude that the BIA ignored any of Li’s evidence.

15   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337

16   n.17 (2d Cir. 2006) (holding that the BIA is not required to

17   “expressly parse or refute on the record” each individual

18   argument or piece of evidence offered by the petitioner as

19   long as it “has given reasoned consideration to the

20   petition, and made adequate findings”) (citation omitted).

21       Because the BIA’s finding that Li failed to demonstrate

22   a change in conditions in China is dispositive of his motion

23   to reopen, we do not reach the issue of whether Li

24   established his prima facie eligibility for relief.
                                  5
 1   Finally, we lack jurisdiction to review the BIA’s decision

 2   not to reopen Li’s proceedings sua sponte, as that decision

 3   is “entirely discretionary.”    See Cyrus v. Keisler, 505 F.3d

 4   197, 202 (2d Cir. 2007) (finding that the BIA’s decision not

 5   to reopen sua sponte under 8 C.F.R. § 1003.2(a) is a

 6   discretionary decision that is not subject to judicial

 7   review).

 8       For the foregoing reasons, the petition for review is

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

10   for a stay of removal in this petition is DENIED as moot.

11                                FOR THE COURT:
12                                Catherine O’Hagan Wolfe, Clerk
13
14




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