     12-2063
     Xia v. Sessions
                                                                                   BIA
                                                                           A097 512 072

                            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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 22nd day of June, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            ROSEMARY S. POOLER,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   XIU KE XIA,
14                           Petitioner,
15
16                     v.                                        12-2063
17                                                               NAC
18
19   JEFFERSON B. SESSIONS III,
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                       Oleh R. Tustaniwsky, Brooklyn,
25                                         NY.
26
27   FOR RESPONDENT:                       Stuart F. Delery, Principal
28                                         Deputy Assistant Attorney General;
29                                         James A. Hunolt, Senior Litigation
1                                   Counsel; Jesse D. Lorenz, Trial
2                                   Attorney, Office of Immigration
3                                   Litigation, United States
4                                   Department of Justice, Washington,
5                                   DC.
6
7          UPON DUE CONSIDERATION of this petition for review of a

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

9    ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11         Petitioner Xiu Ke Xia, a native and citizen of the

12   People’s Republic of China, seeks review of an April 30, 2012,

13   decision of the BIA, denying his motion to reopen.             In re Xiu

14   Ke Xia, No. A097 512 072 (B.I.A. Apr. 30, 2012).              We assume

15   the   parties’   familiarity    with     the     underlying   facts   and

16   procedural history in this case.

17         The applicable standards of review are well established.

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

19   2008).   In his motion to reopen, Xia asserted that he feared

20   persecution in China because he had begun practicing Falun

21   Gong in the United States.

22         It is undisputed that Xia’s 2011 motion to reopen was

23   untimely; it was filed more than three years after his removal

24   order     became    final       in       2007.          See    8 U.S.C.
                                          2
1    § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).            However, the

2    time limitation for filing a motion to reopen does not apply

3    if reopening is sought to apply for asylum and the motion “is

4    based on changed country conditions arising in the country of

5    nationality or the country to which removal has been ordered,

6    if such evidence is material and was not available and would

7    not   have    been    discovered   or   presented   at   the   previous

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

9    § 1003.2(c)(3)(ii).       The BIA did not err in finding that Xia

10   failed to demonstrate such conditions.

11         Xia’s practice of Falun Gong in the United States is a

12   change in personal circumstances, not a change in conditions

13   in China as required to excuse the time limitation.             See Li

14   Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

15   Cir. 2005).      “In determining whether evidence accompanying a

16   motion to reopen demonstrates a material change in country

17   conditions that would justify reopening, [the BIA] compare[s]

18   the evidence of country conditions submitted with the motion

19   to those that existed at the time of the merits hearing

20   below.”      In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).

21   As the BIA found, reports from the U.S. Department of State
                                         3
1    demonstrate that the Chinese government has outlawed and

2    mistreated Falun Gong practitioners since before Xia’s 2006

3    hearing.   And, contrary to Xia’s contention, the record does

4    not establish that government officials are aware or likely

5    to become aware of his Falun Gong practice.     Cf. Hongsheng

6    Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o

7    establish a well-founded fear of persecution in the absence

8    of any evidence of past persecution, an alien must make some

9    showing that authorities in his country of nationality are

10   either aware of his activities or likely to become aware of

11   his activities.”).

12       Accordingly, given the country conditions evidence of

13   mistreatment of Falun Gong practitioners at the time of Xia’s

14   hearing, and the continuation of such conditions at the time

15   he filed his motion, the BIA reasonably concluded that his

16   evidence did not demonstrate a material change in country

17   conditions excusing the untimely filing of his motion.    See

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

19   Dec. at 253, 257.    We do not consider Xia’s argument that he

20   established his prima facie eligibility for relief because

21   the BIA did not consider that issue apart from finding no
                                    4
1    material change in conditions for Falun Gong practitioners in

2    China.    See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104,

3    122 (2d Cir. 2007) (“[W]e may consider only those issues that

4    formed the basis for that decision.”).

5        For the foregoing reasons, the petition for review is

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

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

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

9    is DENIED as moot.    Any pending request for oral argument in

10   this petition is DENIED in accordance with Federal Rule of

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

12   34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe,
15                                 Clerk of Court




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