    11-1526-ag
    Cao v. Holder
                                                                                  BIA
                                                                          A078 746 864
                     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.

         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 8th day of August, two thousand twelve.

    PRESENT:
             PIERRE N. LEVAL,
             PETER W. HALL,
             SUSAN L. CARNEY,
                  Circuit Judges.
    _______________________________________

    XING GUO CAO, AKA CAO XING GUO,
    AKA XING GUO GAO,
             Petitioner,

                    v.                                     11-1526-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Thomas D. Barra, Barra & Ieraci,
                                  PLLC, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Blair T. O’Connor,
                                  Assistant Director; Juria L. Jones,
                       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.

     Petitioner Xing Guo Cao, a native and citizen of the
People’s Republic of China, seeks review of a March 25,
2011, decision of the BIA denying his motion to reopen. In
re Xing Guo Cao, A078 746 864 (B.I.A. Mar. 25, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.

     We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). “An abuse of discretion may be
found . . . where the [BIA’s] decision provides no rational
explanation, inexplicably departs from established policies,
is devoid of any reasoning, or contains only summary or
conclusory statements; that is to say, where the Board has
acted in an arbitrary or capricious manner.” Ke Zhen Zhao
v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001)
(internal citations omitted). When the BIA considers
relevant evidence of country conditions in evaluating a
motion to reopen, the Court reviews the BIA’s factual
findings under the substantial evidence standard. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

     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.
8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
It is undisputed that Cao’s September 2010 motion to reopen
was untimely, because the BIA issued its final order of
removal in 2004, and number-barred, because it was his
second motion to reopen. 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

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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 also 8 C.F.R. § 1003.2(c)(3)(ii).

     In this case, the agency did not abuse its discretion
in denying Cao’s motion to reopen as untimely as substantial
evidence supports the agency’s conclusion that the
background materials do not demonstrate a change in country
conditions material to Cao’s claim. See Jian Hui Shao, 546
F.3d at 169. Although Cao submitted articles describing the
general deterioration of human rights in China, particularly
before and shortly after the 2008 Summer Olympics, the
majority of those articles did not focus specifically on the
persecution experienced by Falun Gong practitioners. The
single article focusing on the mistreatment of Falun Gong
practitioners noted that Falun Gong practitioners “continue
to be severely repressed.” Further, although the excerpt
from the 2008 Congressional-Executive Committee on China
(“CECC”) report states that the Chinese government
“intensified” its crackdown on Falun Gong during the period
of time leading up to the 2008 Summer Olympics, the excerpt
provides no details describing how that intensification has
altered conditions for Falun Gong practitioners in China.
Nor does the CECC report discuss how conditions for Falun
Gong practitioners have deteriorated since the time of Cao’s
April 2003 merits hearing. See Matter of S-Y-G-, 24 I. & N.
Dec. 247, 253 (BIA 2007) (holding that in evaluating
evidence of changed country conditions, 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”). Because the excerpts of the CECC report do not
describe how the Chinese government’s repression of Falun
Gong has increased or intensified since April 2003, the CECC
report does not compel the conclusion that conditions for
Falun Gong practitioners in China have changed such that Cao
was entitled to reopening. See INS v. Elias-Zacarias, 502
U.S. 478, 481, n.1 (1992) (noting that, under the
substantial evidence standard, in order to reverse the BIA’s
fact finding, “we must find not only that the evidence
supports [the contrary] conclusion, but compels it.”);
Melgar de Torres v. Reno, 191 F.3d 307, 312 (2d Cir. 1999).

     Cao also argues that the BIA erred in failing to
consider all of the evidence in support of his motion to

                             3
reopen. As a preliminary matter, other than disagreeing
with the BIA’s decision in this case, Cao offers no evidence
that the BIA did not consider these reports, as he fails to
cite any specific evidence in the record that the BIA failed
to consider. See Jian Hui Shao, 546 F.3d at 169
(recognizing that the Court has rejected the notion that the
agency must “expressly parse or refute on the record each
individual argument or piece of evidence offered by the
petitioner”); Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
“has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”).
Further, in its decision denying Cao’s second motion to
reopen his immigration proceedings, the BIA described Cao’s
documentary evidence and acknowledged that the articles and
reports reflected a general deterioration of human rights in
China as well as the continuing repression of Falun Gong and
other religious minorities. Accordingly, nothing in the
record compels the conclusion that the BIA failed to
consider Cao’s evidence. Because Cao failed to show a
change in conditions for Falun Gong practitioners in China,
the BIA did not abuse its discretion in denying Cao’s motion
to reopen as untimely and number-barred. See 8 U.S.C.
§ 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2), (3).

     For the foregoing reasons, the petition for review is
DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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