16-534 

Li v. Garland

BIA

A070 900 637

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 for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 1 3 st day of September, two thousand 

4 twenty-three. 5 

6 PRESENT: 7 

8 DENNY CHIN,

9 RICHARD J. SULLIVAN,

10 MARIA ARAÚJO KAHN,

11 Circuit Judges. 

12 _____________________________________

13

14 QIN ZHI LI, AKA QINZHI LI, 15

16 Petitioner, 

17

18 v. 16-534

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL, 22

23 Respondent. 

24 _____________________________________
2

1 FOR PETITIONER: Gary J. Yerman, New York, NY.

2

3 FOR RESPONDENT: Brian M. Boynton Principal Deputy 

4 Attorney General; Liza S. Murcia, 

5 Senior Litigation Counsel; Kathleen 

6 Kelly Volkert, Trial Attorney, Office 

7 of Immigration Litigation, United 

8 States Department of Justice, 

9 Washington, DC.

10

11 UPON DUE CONSIDERATION of this petition for review of a Board of 

12 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

13 DECREED that the petition for review is DENIED.

14 Petitioner Qin Zhi Li, a native and citizen of the People’s Republic of China, 

15 seeks review of a January 28, 2016, decision of the BIA denying his motion to 

16 reopen his removal proceedings to apply for asylum and related relief. In re Qin 

17 Zhi Li, No. A 070 900 637 (B.I.A. Jan. 28, 2016). We assume the parties’ familiarity 

18 with the underlying facts and procedural history.

19 A motion to reopen ordinarily must be filed within ninety days of a final 

20 order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time 

21 limit does not apply, however, if the movant seeks to reopen to apply for asylum 

22 “based on changed country conditions arising in the country of nationality or the 
3

1 country to which removal has been ordered, if such evidence is material and was 

2 not available and would not have been discovered or presented at the previous 

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

4 We review the BIA’s denial of a motion to reopen deferentially for abuse of 

5 discretion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). We 

6 will identify such abuse only if the BIA’s decision-making was arbitrary or 

7 capricious, as evidenced by a decision that provides no rational explanation for 

8 the agency’s conclusion, inexplicably departs from established policies, is devoid 

9 of any reasoning, or contains only summary or conclusory statements. See id. at 

10 169.

11 That said, when a petitioner bases a motion to reopen on a purported change 

12 in country conditions, “the BIA must compare the evidence of country conditions 

13 submitted with the motion to those that existed at the time of the merits hearing 

14 below.” Tanusantoso v. Barr, 962 F.3d 694, 698 (2d Cir. 2020) (internal quotation 

15 marks omitted); see also id. (“The BIA has broad discretion in how it conducts this 

16 review, but it must explicitly consider any country conditions evidence submitted 

17 by an applicant that materially bears on his claim.” (internal quotation marks 
4 

1 omitted)). Where such consideration has been given, we review the BIA’s fact2 finding only for substantial evidence. See Jian Hui Shao, 546 F.3d at 169; see also 

3 Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001) (“Substantial 

4 evidence . . . means such relevant evidence as a reasonable mind might accept as 

5 adequate to support a conclusion.” (internal quotation marks omitted)). 

6 Here, the BIA did not abuse its discretion in denying Li’s motion to reopen. 

7 As the agency correctly determined, Li’s motion was untimely because he filed it 

8 in 2015 – approximately thirteen years after the BIA affirmed his removal order in 

9 2002 – and Li did not qualify for the changed-conditions exception. Li asserts that 

10 he became a Christian in the United States in 2014 and that conditions for 

11 Christians in China have materially worsened since his original proceedings. But 

12 Li’s practice of Christianity is not itself a changed country condition. See Wei 

13 Guang Wang v. Bd. of Immigr. Appeals, 437 F.3d 270, 273–74 (2d Cir. 2006) (holding 

14 that a “self-induced change in personal circumstances cannot suffice” to show 

15 changed country conditions excusing the time limit on a motion to reopen). And 

16 substantial evidence supports the BIA’s conclusion that Li did not establish a 

17 material change in conditions for Christians in China over the relevant time 
5 

1 period. Indeed, the BIA explicitly compared evidence of conditions at the time of 

2 Li’s original proceedings in 1999 with those at the time of his motion in 2015, and 

3 it reasonably found that the country-conditions evidence showed continuing 

4 problems for Christians in China rather than a material change in circumstances. 

5 See Tanusantoso, 962 F.3d at 698; compare, e.g., Certified Admin. Record at 871–72, 

6 875 (1998 State Department report noting that the Chinese government requires 

7 registration of five officially recognized religions (Catholicism, Protestantism, 

8 Buddhism, Daoism and Islam) and closed hundreds of house church groups, 

9 detained worshipers, and destroyed church property), with id. at 559–61 570, 579–

10 81 (2013 State Department report noting that unregistered house churches 

11 continue to face persecution and illegal detention). 

12 Li’s arguments to the contrary are unavailing. For example, Li asserts that 

13 the BIA erred because it considered only whether conditions for Christians had 

14 materially worsened in his home province of Fujian. But where, as here, the

15 record reveals that conditions vary throughout a country, the applicant has the 

16 burden to establish conditions in his home province. See Jian Hui Shao, 546 F. 3d 

17 at 149–50, 165–66; see also Jian Liang v. Garland, 10 F.4th 106, 117 (2d Cir. 2021) 
6

1 (concluding that petitioner failed to meet his burden of proof because he produced 

2 no evidence of persecution of Christians in Fujian Province). Li also asks this 

3 Court to take judicial notice of country-conditions evidence published in 2022. 

4 We decline to do so, however, as that evidence was not before the BIA and does 

5 not reflect “fundamental change” in China. Hoxhallari v. Gonzales, 468 F.3d 179, 

6 185–88 & n.5 (2d Cir. 2006); see also 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals 

7 shall decide the petition only on the administrative record on which the order of 

8 removal is based.”).

9 For the foregoing reasons, the petition for review is DENIED. All pending 

10 motions and applications are DENIED and stays VACATED.

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, 

13 Clerk of Court