11-1526-ag

Cao v. Holder

BIA

A078 746 864

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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,
2

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
3

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
4

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