     14-256 (L)
     Xia v. Sessions
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A075 981 406

                            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 May, two thousand seventeen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            ROSEMARY S. POOLER,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   XIAO YAN XIA,
14            Petitioner,
15                                                                   14-256(L),
16                     v.                                            15-4129(CON)
17                                                                   NAC
18   JEFFERSON B. SESSIONS III,
19   UNITED STATES ATTORNEY GENERAL,
20
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Richard Tarzia, Belle Mead, NJ.
25
26   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
27                                       Assistant Attorney General;

      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
     Jefferson B. Sessions III is automatically substituted for former Attorney
     General Loretta E. Lynch as Respondent.
1                                Michelle G. Latour, Deputy Director;
2                                Victor M. Lawrence, Senior
3                                Litigation Counsel, Office of
4                                Immigration Litigation, United
5                                States Department of Justice,
6                                Washington, DC.
7
8         UPON DUE CONSIDERATION of these petitions for review of two

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

10   ORDERED, ADJUDGED, AND DECREED that the petitions for review

11   are DENIED.

12        Petitioner Xiao Yan Xia, a native and citizen of the

13   People’s Republic of China, seeks review of (1) a January 6,

14   2014, decision of the BIA, affirming a September 19, 2012,

15   decision of an Immigration Judge (“IJ”) denying Xia’s first

16   motion to reopen, In re Xiao Yan Xia, No. A075 981 406 (B.I.A.

17   Jan. 6, 2014), aff’g No. A075 981 406 (Immig. Ct. N.Y. City Sept.

18   19, 2012), and (2) a December 11, 2015, decision of the BIA

19   denying her second motion to reopen, In re Xiao Yan Xia, No.

20   A075 981 406 (B.I.A. Dec. 11, 2015).     We assume the parties’

21   familiarity with the underlying facts and procedural history

22   in this case.

23        We have reviewed both the IJ’s and the BIA’s decisions “for

24   the sake of completeness.”    Wangchuck v. Dep’t of Homeland

25   Sec., 448 F.3d 524, 528 (2d Cir. 2006).     The applicable



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1    standards of review are well established.     See Jian Hui Shao

2    v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

3        It is undisputed that Xia’s motions to reopen were untimely

4    filed more than 13 years after the IJ’s removal order became

5    final, and that her second motion was number barred.       See

6    8 U.S.C. § 1229a(c)(7)(A), (c)(7) (C)(i); 8 C.F.R.

7    §§ 1003.2(c)(2), 1003.23(b)(1).    These time and number

8    limitations do not apply, however, if the motion is to reopen

9    in order to apply for asylum and “is based on changed country

10   conditions arising in the country of nationality or the country

11   to which removal has been ordered, if such evidence is material

12   and was not available and would not have been discovered or

13   presented at the previous proceeding.”    8 U.S.C.

14   § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

15   §§ 1003.2(c)(3), 1003.23(b)(4)(i).    “In determining whether

16   evidence accompanying a motion to reopen demonstrates a

17   material change in country conditions that would justify

18   reopening, [the BIA] compare[s] the evidence of country

19   conditions submitted with the motion to those that existed at

20   the time of the merits hearing below.”    In re S-Y-G-, 24 I. &

21   N. Dec. 247, 253 (B.I.A. 2007).   The BIA did not err in finding

22   that Xia failed to demonstrate such conditions.


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1        While the 2014 Annual Report of the China Aid Association

2    states that “Christians and practitioners of other faiths in

3    China experienced the harshest persecution seen in over a

4    decade,” China Aid, 2014 Annual Report Religious and Human

5    Rights Persecution in China 1 (Jan.-Dec. 2014), available at

6    http://www.chinaaid.org/2015/04/china-aid-2014-annual-repor

7    t-indicates.html, that report and the other record evidence do

8    not demonstrate a material change in conditions since the time

9    of Xia’s hearing in 1998.   See In re S-Y-G-, 24 I. & N. Dec.

10   at 253.   Rather, the country conditions evidence from 1998 and

11   that from the time of Xia’s motions describe the following

12   similar conditions related to the government’s treatment of

13   unregistered religious groups: demolition of unregistered

14   churches; removal of crosses from buildings; detention of

15   unregistered church leaders; criminal or administrative

16   penalties for unregistered church practitioners; and

17   variations in government interference depending on location.

18   See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re S-Y-G-, 24

19   I. & N. Dec. at 257 (“Change that is incremental or incidental

20   does not meet the regulatory requirements for late motions of

21   this type.”).




                                    4
1        Xia argues that the BIA erred in declining to credit two

2    letters from her family friends, both of whom claimed to have

3    been persecuted for worshiping in an unregistered church in

4    China and asserted that Xia would face a similar fate should

5    she return.   However, the BIA did not abuse its discretion in

6    declining to credit the letters because they were unsworn and

7    created for the purpose of supporting Xia’s case.   See Y.C. v.

8    Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s

9    decision to afford little weight to husband’s letter because

10   letter was unsworn and submitted by an interested witness); see

11   also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 (B.I.A.

12   2010) (affording minimal weight to documents obtained solely

13   for removal proceedings by witnesses not subject to

14   cross-examination), rev’d on other grounds by Hui Lin Huang v.

15   Holder, 677 F.3d 130 (2d Cir. 2012).

16       Accordingly, because Xia failed to demonstrate material

17   changed country conditions in China, the agency did not abuse

18   its discretion in denying her motions to reopen as untimely.

19   See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §§ 1003.2(c),

20   1003.23(b).

21       For the foregoing reasons, these petitions for review are

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


                                   5
1   that the Court previously granted in these petitions is VACATED,

2   and any pending motion for a stay of removal in these petitions

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

4   in these petition is DENIED in accordance with Federal Rule of

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

6   34.1(b).

7                                FOR THE COURT:
8                                Catherine O’Hagan Wolfe, Clerk




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