    12-996
    Simonchyk v. Sessions
                                                                                       BIA
                                                                               A079 326 070

                            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.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    24th day of February, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             JOHN M. WALKER, JR.,
             REENA RAGGI,
                  Circuit Judges.
    _____________________________________

    MARYIA VLADIMIROVNA SIMONCHYK,
             Petitioner,

                      v.                                             12-996
                                                                     NAC
    Jeff Sessions, UNITED STATES
    ATTORNEY GENERAL,*
             Respondent.
    _____________________________________


    FOR PETITIONER:                      Alexander J. Segal, Grinberg &
                                         Segal, P.L.L.C., New York, New York.




    *Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeff
    Sessions is substituted for Eric H. Holder, Jr. as Respondent.
FOR RESPONDENT:              Stuart F. Delery, Acting Assistant
                             Attorney General; Leslie McKay,
                             Assistant   Director;   Margot   L.
                             Carter, Trial Attorney, Office of
                             Immigration   Litigation,    United
                             States   Department   of   Justice,
                             Washington, DC.

    UPON DUE CONSIDERATION of this petition for review of a

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

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

GRANTED in part and DENIED in part.

    Petitioner Maryia Vladimirovna Simonchyk, a native and

citizen of Belarus, seeks review of a February 17, 2012 decision

of the BIA denying her motion to reopen.         See In re Maryia

Vladimirovna Simonchyk, No. A079 326 070 (B.I.A. Feb. 17, 2012).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We review the denial of a motion to reopen for abuse of

discretion,   but   review    any    findings   regarding   country

conditions for substantial evidence.      Jian Hui Shao v. Mukasey,

546 F.3d 138, 168-69 (2d Cir. 2008).    An alien seeking to reopen

proceedings may file only one motion to reopen no later than

90 days after the date on which the final administrative

decision was rendered.       8 U.S.C. § 1229a(c)(7)(A), (C)(i);
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8 C.F.R. § 1003.2(c)(2).   There is no dispute that Simonchyk’s

2011 motion was untimely and number-barred because it was her

second motion and was filed nearly 7 years after the BIA’s 2004

decision.   See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

§ 1003.2(c)(2).    However, the filing restrictions may be

excused if the motion “is based on changed country conditions

arising in the country of nationality or the country to which

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

not available and would not have been discovered or presented

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

see 8 C.F.R. § 1003.2(c)(3)(ii).

    The BIA’s determination that Simonchyk failed to establish

a material change in conditions in Belarus for political

dissidents generally is supported by substantial evidence.

“In determining whether evidence accompanying a motion to

reopen demonstrates a material change in country conditions

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

of country conditions submitted with the motion to those that

existed at the time of the merits hearing below.”    Matter of

S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).          While

Simonchyk’s evidence documents political unrest and abuses of
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dissidents in the aftermath of the 2010 Belarusian presidential

election, the BIA reasonably determined that the evidence at

the time of her 2003 merits hearing detailed similar political

unrest, claims of election fraud against President Lukashenko,

and violence against political dissidents.       See Xiao Ji Chen

v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

(holding that the weight accorded to evidence lies largely

within the discretion of the agency).       Thus, the BIA did not

abuse its discretion in concluding that Simonchyk failed to

establish materially changed country conditions, based on the

evidence concerning the 2010 Belarusian presidential election,

for political dissidents in general.       See Jian Hui Shao, 546

F.3d at 169.

    The    BIA,    however,     also       rejected     Simonchyk’s

changed-circumstances   claim   to   the   extent     she   presented

evidence that the Belarusian government would persecute her

personally based on her imputed political opinion, believing

her to be a U.S.-affiliated political dissident.        “We have not

addressed in a precedential decision th[at] issue . . . i.e.,

whether a change that pertains to a particular individual in

his home country, as opposed to a general change in policy, is
                                4
sufficient    to   establish   the   changed   country   conditions

necessary to excuse the 90–day time limitation on motions to

reopen.”   Chang Fan Zeng v. Holder, 487 F. App’x 643, 644-65

(2d Cir. 2012) (summary order) (internal quotation marks

omitted); accord Shin Guo Chen v. Holder, 482 F. App’x 659, 660

(2d Cir. 2012) (summary order); Chunhua Jiang v. Lynch, 621 F.

App’x 24, 25 (2d Cir. 2015) (summary order); Liang Shui Zhang

v. Lynch, 645 F. App’x 10, 12 n.2 (2d Cir. 2016) (summary order).

We therefore GRANT in part the petition for review and remand

to the BIA for its assessment of the reliability of the

petitioner’s individualized evidence or for its explanation,

in a published decision, whether its construction of “changed

country conditions” differs from that stated by the Seventh and

Eleventh Circuits.    See Zhang v. U.S. Att'y Gen., 572 F.3d 1316,

1320 (11th Cir. 2009); Joseph v. Holder, 579 F.3d 827, 834 (7th

Cir. 2009).

     For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part, and the case is remanded

to the BIA for further proceedings consistent with this order.

Any stay of removal that the Court previously granted in this


                                 5
petition is VACATED, and any pending motion for a stay of removal

in this petition is DENIED as moot.

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe, Clerk of Court




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