         10-1296-ag
         Hu v. Holder
                                                                                        BIA
                                                                               A073 610 174
                             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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 2 nd day of February, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _______________________________________
12
13       Mingguang Hu, also known as Ming Guang
14       Hu,
15                Petitioner,
16
17                      v.                                      10-1296-ag
18                                                              NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL, OIL,
22                Respondents.
23       _______________________________________
24
25       FOR PETITIONER:               Wendy Tso, New York, New York.
26
27       FOR RESPONDENTS:              Tony West, Assistant Attorney
28                                     General; Jennifer Paisner-Williams,
29                                     Senior Litigation Counsel; Yedidya
30                                     Cohen, Trial Attorney, Office of
31                                     Immigration Litigation, Civil
32                                     Division, United States Department
33                                     of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    decision of the Board of Immigration Appeals (“BIA”), it is

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Mingguang Hu, a native and citizen of the People’s

6    Republic of China, seeks review of a March 18, 2010, order

7    of the BIA denying his motion to reopen his removal

8    proceedings.   In re Hu, No. A073 610 174 (B.I.A. Mar. 18,

9    2010).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).     An alien who has been ordered removed may

14   file one motion to reopen, but must do so within 90 days of

15   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

16   Here, the BIA did not abuse its discretion by denying Hu’s

17   motion to reopen as untimely and number-barred because his

18   motion was filed in November 2009, almost thirteen years

19   after the entry of his December 1996 final order of removal

20   and it was his second motion to reopen.     See id.; see also

21   8 C.F.R. § 1003.2(c)(2).

22       The BIA reasonably concluded that Hu failed to

23   establish changed country conditions such that the time and

                                     2
1    number limits on his motion to reopen should be excused.

2    See 8 U.S.C. § 1229a(c)(7)(C)(ii).    As an initial matter, we

3    decline to review Hu’s unexhausted claim that he established

4    changed country conditions with regard to China’s family

5    planning policy.   See Foster v. INS, 376 F.3d 75, 78 (2d

6    Cir. 2004) (holding that petitioners must raise to the BIA

7    the specific issues they later raise in this Court); Lin

8    Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

9    Cir. 2007) (holding that, although not jurisdictional, the

10   judicially imposed exhaustion requirement is mandatory).

11       As to Hu’s claim of worsening conditions for

12   Christians, the evidence Hu submitted in support of his

13   motion indicated ongoing persecution against Christians in

14   China.   However, Hu fails to point to evidence in the record

15   establishing that the Chinese government’s current treatment

16   of Christians differed from their treatment at the time of

17   his merits hearing.   See Matter of S-Y-G-, 24 I. & N. Dec

18   247, 253 (BIA 2007) (finding that, “[i]n determining whether

19   evidence accompanying a motion to reopen demonstrates a

20   material change in country conditions that would justify

21   reopening, we compare the evidence of country conditions

22   submitted with the motion to those that existed at the time

23   of the merits hearing below”).    Therefore, substantial

                                   3
1    evidence supports the BIA’s determination that Hu failed to

2    establish changed country conditions.   See 8 C.F.R.

3    § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui Shao v.

4    Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that when

5    the BIA considers relevant evidence of country conditions in

6    evaluating a motion to reopen, this Court reviews the BIA’s

7    factual findings under the substantial evidence standard).

8        Furthermore, there is no merit to Hu’s argument that he

9    was not required to show changed country conditions in order

10   to excuse the time and number limitations on his motion to

11   reopen.   Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.

12   2008) (holding that the BIA reasonably interpreted the

13   Immigration and Nationality Act and its implementing

14   regulations to require that “an alien under a final removal

15   order must file a successive asylum application in

16   conjunction with a motion to reopen and in accordance with

17   th[e] procedural requirements [for filing such motions]”).

18       Lastly, because Hu does not challenge the BIA’s finding

19   that he failed to demonstrate due diligence in pursuing his

20   ineffective assistance of counsel claim, we find that issue

21   waived.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545

22   n.7 (2d Cir. 2005) (holding that issues not sufficiently

23   argued in the briefs are considered waived and normally will


                                   4
1    not be addressed on appeal).    As Hu failed to challenge this

2    finding, which is dispositive of his ineffective assistance

3    of counsel claim, his claim of ineffective assistance

4    provides no basis for a grant of the petition for review.

5    See Ali, 448 F.3d at 517 (holding that an individual seeking

6    to reopen his case is required to show that he “exercised

7    due diligence in pursuing the case during the period [he]

8    seeks to toll”); see also Steevenez v. Gonzales, 476 F.3d

9    114, 118 (2nd Cir. 2007) (denying a petition for review

10   because petitioner failed to challenge a dispositive ground

11   for relief).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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