11-2570-ag
Hu v. Holder
                                                                                BIA
                                                                        A073 572 721
                UNITED STATES COURT OF APPEALS
                    FOR THE SECOND CIRCUIT

                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
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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.

     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of September, two thousand twelve.

PRESENT:
         GUIDO CALABRESI,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
              Circuit Judges.
_______________________________________

JIAN XI HU,
         Petitioner,

               v.                                       11-2570-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                Gary J. Yerman, Esq., New York, New
                               York.

FOR RESPONDENT:                Tony West, Assistant Attorney
                               General; Luis E. Perez, Senior
                               Litigation Counsel; Don G. Scroggin,
                               Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Jian Xi Hu, a native and citizen of the People’s

Republic of China, seeks review of a June 8, 2011 decision

of the BIA denying her motion to reopen. In re Jian Xi Hu,

No. A073 572 721 (B.I.A. June 8, 2011).    We review the BIA’s

denial of such a motion for abuse of discretion, mindful of

the Supreme Court’s admonition that such “motions . . . are

disfavored.”   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992))

(internal quotation marks omitted).    We assume the parties’

familiarity with the underlying facts and the procedural

history of this case.

    Hu first argues that the BIA erred in concluding that

her motion to reopen was untimely.    We are not persuaded.

Aliens seeking to reopen proceedings may file one motion to

reopen no later than 90 days after the date on which the

final administrative decision was rendered.    See 8 U.S.C.


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§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).      It is

undisputed that Hu’s March 23, 2011 motion to reopen was

untimely because the BIA issued its final order of removal

on October 24, 2002.   However, the time and number

limitations for filing a motion to reopen do not apply 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 proceedings.”   8 U.S.C.

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

    Although Hu submitted articles and reports describing

government harassment, arrest, and interrogation of members

of underground churches in China, the BIA concluded that

those materials did not describe a change in country

conditions since Hu’s January 2000 hearing.   See Matter of

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

“the evidence of country conditions submitted with the

motion to those that existed at the time of the merits

hearing below”).   Substantial evidence supports that

conclusion.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

(2d Cir. 2008) (applying substantial evidence standard to


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agency’s reliance on background materials to find no

material change in country conditions).   Indeed, a 1998 U.S.

State Department Report on conditions in China that Hu

submitted to the immigration judge (“IJ”) in January 2000

reflects that, by that time, the Chinese government already

had a policy of repressing unregistered church activity,

that unregistered religious groups had been “hard hit” in

many provinces, and that the government had targeted the

members and leaders of unregistered underground Christian

churches for persecution, including through surveillance,

detentions, arrests, and property destruction.    Thus, the

agency did not abuse its discretion in denying Hu’s motion

to reopen as untimely.

    Hu further contends that the BIA abused its discretion

in declining to reopen her case based on the alleged bias of

the IJ.   To the extent Hu appears to challenge the BIA’s

decision not to reopen her case sua sponte under 8 C.F.R. §

1003.2(a), we lack jurisdiction to review the claim because

such a decision is “entirely discretionary.”     Azmond Ali v.

Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).    Moreover,

insofar as the BIA construed Hu’s motion as one seeking

remand based on the IJ’s alleged bias, the BIA did not abuse

its discretion in declining to remand on that ground.      See

                              4
Li Yong Cao v. U.S Dep’t of Justice, 421 F.3d 149, 157 (2d

Cir. 2005) (stating that abuse of discretion may be found

only where BIA’s “decision provides no rational explanation,

inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory

statements” (internal quotation marks omitted)).

    As the BIA properly concluded, Hu’s reliance on Islam

v. Gonzales, 469 F.3d 53 (2d Cir. 2006), is misplaced.     In

Islam, the BIA adopted and affirmed a decision by IJ Jeffrey

S. Chase, the same IJ who denied Hu’s application.      See id.

at 54-55.   We remanded the BIA’s decision because we

identified specific instances of IJ Chase badgering,

interrupting, and sparring with the petitioner, all of which

combined to “create[] an atmosphere in which it might have

been difficult for [the petitioner] to advocate fully on his

own behalf,” id. at 56, such that there was “substantial

uncertainty as to whether the record below was fairly and

reliably developed,” id.     Although IJ Chase’s comments in

this case regarding Chinese asylum applicants may well have

been inappropriate, there is no indication that the record

at Hu’s January 2000 hearing was anything other than fairly

and reliably developed, or that the IJ was biased against

Hu, or that he interfered with her or her counsel’s ability

to advocate on her behalf.
                                5
    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DENIED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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