16-534 Li v. Garland BIA A 070 900 637 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 ELECTR ONIC 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 1 st da y of September , two thousand 3 twenty-t hree

. 4 5 PRESENT: 6 7 DENNY CHIN, 8 RICHARD J. SULLIVAN, 9 MARIA ARAÚJO KAHN, 10 Circuit Judges. 11

_____________________________________ 12 13 QIN ZHI LI , AKA QINZHI LI, 14 15 Petitioner , 16 17

v. 16

- 534 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 22 Respondent

. 23

_____________________________________ 242 FOR PETITIONER : Gary J. Yerman, New York, NY

. 1 2 FOR RESPONDENT: Brian M. Boynton Principal Deputy 3 Attorney General ; Liza S. Murcia , 4 Senior Litigation Counsel ; Kathleen 5 Kelly Volkert , Trial Attorney, Office 6 of Immigration Litigation, United 7 States Department of Justice, 8 Washington, D C. 9 10 UPON DUE CONSIDERATION of this petition for review of a Board of 11 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 12

DECREED tha t the petitio n for review is DENIED

. 13

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

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

reopen his removal proceedings to apply for asylum and related relief

. In r e Qin 16

Zhi Li , No. A 070 900 637 (B.I.A. Jan. 28, 2016 ). We assume the parties’ familiarity 17 with the underlying facts and procedural history

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

order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time 20 limit does not apply , however, if the movant seeks to reopen to apply for asylum 21 “based on changed country conditions arising in the country of nationality or the 223 country to which removal has been ordered, if such evidence is material and was 1

not available and w ould not have been discovered or presented a t the previous 2 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 3

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

discretion. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 168

– 69 (2d Cir. 2008). We 5 will identify such abuse only if the BIA ’ s decision

- making was arbitrary or 6
capricious, as evidenced by a decision that provides no rational explanation for 7 the agency ’ s conclusion, inexplicably departs from established policies, is devoid 8 of any reasoning , or contains only summary or conclusory statements

. See id. at 9

169. 10
That said, when a petitioner bases a motion to reopen on a purported change 11

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

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

below.” Tanusantoso v. Barr , 962 F.3d 694, 698 (2d Cir. 2020) ( internal quotation 14
marks omitted) ; see also id. ( “ The BIA has broad discretion in how it conducts this 15 review, but it must explicitly consider any country conditions evidence submitted 16 by an applicant that materially bears on his claim.” (internal quotation marks 174 omitted) ). Where such consideration has b een given, we review the BIA ’ s fact

1 finding only for substantial evidence. See Jian Hui Shao , 546 F.3d at 1 69 ; see also 2

Alvarado

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

evidence

. . . means such relevant evidence as a reasonable mind might accept as 4 adequate to support a conclusion.” (internal quotation marks omitted))

. 5
Here, t he BIA did not abuse its discretion in denying Li’s motion to reopen. 6 As the agency correctly determined, Li’s motion wa s untimely because he fi led it 7

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

2002 – and Li did not qualify for the changed

- conditions exception

. Li asserts that 9

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

Christians in China ha ve materially worsened since his original proceedings

. But 11 Li’s practice of Christianity is not itself a changed country condition

. S ee Wei 12
Guang Wang v. Bd. of I mmigr. A ppeals , 437 F.3d 270, 273

– 74 (2d Cir. 2006) (holding 13

that a “self

- induced change in personal circumstances cannot suffice” to show 14 changed country conditions excusing the time limit on a motion to reopen). And 15

s ubstantial evidence supports the BIA’s conclusion that Li did not establish a 16 material change in conditions for Christians in China over the relevant time 175 period

. Indeed, t he BIA explicitly compared evidence of conditions at the time of 1 Li’s original proceedings in 1999 with those at the time of his moti on in 2015 , and 2

it reasonably found that the country

- conditions evidence showed continuing 3 problems for Christians in China rather than a material change in circumstances

. 4

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

– 72, 5

875 ( 1998 State Department report noting that the Chinese government requires 6 registration of five officially recognized religions (Catholicism, Protestantism, 7
Buddhism, Daoism and Islam) and closed hundreds of house church groups, 8 detained worshipers, and destroyed church property ), with i d. at 559 –61 570, 579

– 9

81 (2013 State Department report noting that unregistered house churches 10 continue to face persecution and illegal detention ). 11 Li’s arguments to the contrary are unavailing . For example, Li asserts that 12 the BIA erred because it considered only whether conditions for Christians had 13 materially worsened in his home province of Fujian . B ut where , as here, the 14

record reveals that conditions vary throughout a country, the applicant has the 15 burden to establish conditions in his home province. See Jian Hui Shao , 546 F. 3d 16

at 149

– 50, 165

– 66; see also Jian Liang v. Garland , 10 F.4th 106, 117 (2d Cir. 2021) 176 ( concludi ng that petitioner failed to meet his burden of proof because he produced 1 no evidence of persecution of Christians in Fujian Province ). Li also asks this 2

Court to take judicial notice of country

- conditions evidence published in 2022

. 3
We decline to do so, however, as that evidence was not before the BIA and does 4

not reflect “fundamental change ” in China

. Hoxhallari v. Gonzales , 468 F.3d 179, 5

185

– 8 8 & n.5 (2d Cir. 2006) ; s ee also 8 U.S.C. § 1252(b)(4)(A) (“[T]he court of appeals 6 shall decide the petition only on the administrative record on which the order of 7
removal is based.”). 8 For the foregoing reasons, the petition for review is DENIED

. All pending 9 motions and applications are DENIED and stays VACATED. 10

FOR THE COU RT: 11 Catherine O ’ Hagan Wolfe, 12 Clerk of Court 13