     14-1304
     Wan v. Sessions
                                                                                       BIA
                                                                               A073 533 991
                            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   9th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   AIWEI WAN,
14                           Petitioner,
15
16                     v.                                            14-1304
17                                                                   NAC
18
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Theodore N. Cox, New York, New York.
25
26   FOR RESPONDENT:                       Joyce R. Branda, Acting Assistant
27                                         Attorney General; Mary Jane Candaux,
28                                         Assistant Director; Michael C.
29                                         Heyse, Trial Attorney, Office of
30                                         Immigration Litigation, United
31                                         States Department of Justice,
32                                         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 Aiwei Wan, a native and citizen of China, seeks

6    review of an April 10, 2014, decision of the BIA denying her

7    motion to reconsider and reopen.         In re Aiwei Wan, No. A073 533

8    991 (B.I.A. Apr. 10, 2014).       We assume the parties’ familiarity

9    with the underlying facts and procedural history in this case.

10           The applicable standards of review are well established.

11   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

12   2008).        Wan filed with the BIA a motion to reconsider the denial

13   of her second motion to reopen as untimely and a third motion

14   to reopen.        In support, Wan submitted evidence related to her

15   claim that she fears persecution based on the birth of her

16   children in the United States purportedly in violation of

17   China’s population control program.            At bottom, the issue

18   underlying both reconsideration and reopening is whether Wan’s

19   proceedings should have been reopened to allow her to apply for

20   asylum based on a change in conditions in China.

21           It is undisputed that Wan’s motions to reopen were untimely

22   and number barred because they were her second and third motions

23   filed more than a decade after her deportation order became
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1    final.          See    8 U.S.C.    § 1229a(c)(7)(A),     (C)(i);       8 C.F.R.

2    § 1003.2(c)(2).            These time and numerical limitations do not

3    apply if the motion is to reopen proceedings in order to apply

4    for asylum “based on changed country conditions arising in the

5    country of nationality or the country to which removal has been

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

7    would not have been discovered or presented at the previous

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

9    § 1003.2(c)(3)(ii).

10           For largely the same reasons as this Court set forth in Jian

11   Hui Shao, we find no error in the agency’s determination that

12   Wan     failed        to   demonstrate   a   material   change    in   country

13   conditions or her prima facie eligibility for relief.                   See 546

14   F.3d at 158-72.             As with the evidence discussed in Jian Hui

15   Shao,         Wan’s    evidence    related    to   Zhejiang      Province   is

16   insufficient because it does not discuss the use of force in

17   the enforcement of the family planning policy.                    See id. at

18   160-61, 165-66, 171-72.

19           For the foregoing reasons, the petition for review is

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

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

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

23   is DISMISSED as moot.             Any pending request for oral argument
                                              3
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1   in this petition is DENIED in accordance with Federal Rule of

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

3   34.1(b).

4                               FOR THE COURT:
5                               Catherine O’Hagan Wolfe, Clerk




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