         12-3428
         Yong v. Holder
                                                                                       BIA
                                                                               A088 524 523
                           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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       SHEAU FONG YONG,
14                Petitioner,
15
16                        v.                                    12-3428
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Daniel E. Goldman,
27                                     Senior Litigation Counsel; Brianne
28                                     Whelan Cohen, Trial Attorney, Office
29                                     of Immigration Litigation, United
30                                     States Department of Justice,
31                                     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

 4   is DENIED.

 5       Sheau Fong Yong, a native and citizen of Indonesia,

 6   seeks review of an August 6, 2012, decision of the BIA

 7   denying her motion to reopen.       In re Sheau Fong Yong, No.

 8   A088 524 523 (B.I.A. Aug. 6, 2012).      We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of this case.

11       We have reviewed the BIA’s denial of Yong’s motion to

12   reopen for abuse of discretion.       Ali v. Gonzales, 448 F.3d

13   515, 517 (2d Cir. 2006) (per curiam).      Yong argues that her

14   case should have been reopened pursuant to 8 U.S.C.

15   § 1229a(c)(7)(C)(ii), which allows reopening at anytime

16   “based on changed country conditions arising in the country

17   of nationality or the country to which removal has been

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

19   and would not have been discovered or presented at the

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

21   also 8 C.F.R. § 1003.2(c)(3)(ii).      We find that the BIA did

22   not abuse its discretion here.



                                     2
 1          In denying Yong’s motion, the BIA found that the

 2   evidence of Yong’s Bethel Church membership since 2006 was

 3   not “previously unavailable” and could have been submitted

 4   at the time of her 2010 hearing before the IJ.     Yong

 5   correctly points out that the BIA erred in basing its denial

 6   in part on this fact because the evidence of the Bethel

 7   Church bombing in Indonesia was the evidence Yong claimed

 8   was new and demonstrated changed country conditions; whereas

 9   the evidence of her church membership was submitted simply

10   to prove the materiality of the bombing to Yong’s claim.

11   Nonetheless, to remand for the BIA to correct this finding

12   would be futile, as it alternately found that none of Yong’s

13   new country conditions evidence -– including evidence of the

14   bombing of Bethel Church -– established significantly

15   worsened conditions in Indonesia material to Yong’s claim.

16   See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir.2008)

17   (noting that remand is futile when the Court can

18   “confidently” “predict that the agency would reach the same

19   decision absent” the errors that were made) (quoting Xiao Ji

20   Chen v. Mukasey, 471 F.3d 315, 339 (2d Cir. 2006)).

21          Indeed, we find no error in the BIA’s conclusion that

22   Yong    failed to demonstrate materially changed conditions


                                    3
 1   such that further consideration would have been warranted in

 2   reopened proceedings, as the record evidence did not

 3   indicate a change in conditions in Indonesia, but rather

 4   reflected a continuation of sporadic religious violence

 5   targeted towards ethnic Chinese Christians, which existed at

 6   the time of the Yong’s merits hearing.    See 8 U.S.C.

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

 8   S-Y-G-, 24 I&N Dec. 247, 253 (BIA 2007) (noting that in

 9   evaluating evidence of changed country conditions, the BIA

10   “compare[s] the evidence of country conditions submitted

11   with the motion to those that existed at the time of the

12   merits hearing below”); see also Siewe v. Gonzales, 480 F.3d

13   160, 167 (2d Cir. 2007) (“where there are two permissible

14   views of the evidence, the fact finder’s choice between them

15   cannot be clearly erroneous”).    Moreover, as to her prima

16   facie eligibility for relief, the BIA did not err in finding

17   that the bombing did not reflect significantly worsened

18   conditions, that neither Yong nor any of her family members

19   had ever attended the Bethel Church, or that Yong could not

20   avoid persecution by relocating to another part of

21   Indonesia.   See Jian Xing Huang v. INS, 421 F.3d 125, 129

22   (2d Cir. 2005) (per curium) (absent “solid support” in the

23   record, a fear of future persecution was “speculative at

                                   4
 1   best.”); see also 8 C.F.R. § 1003.2(c)(1) (requiring that a

 2   motion to reopen be based on new evidence material to the

 3   movant’s eligibility for asylum).     Accordingly, the BIA did

 4   not abuse its discretion in denying Yong’s motion to reopen.

 5   See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii);

 6   see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

 7   Cir. 2006).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

12   this petition is DISMISSED as moot.     Any pending request for

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk




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