16-2714 Wang v. Sessions BIA A077 977 498 

### 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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **5 th**  **day of December, two thousand seventeen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **JIN SHUAN WANG, AKA YAN SHI YU,** 13 Petitioner **,** 14 **v. 16-2714** 15 **NAC** 16 **JEFFERSON B. SESSIONS III,** 17 **UNITED STATES ATTORNEY GENERAL,** 18 Respondent **.** 19

**_____________________________________** 20 21 **FOR PETITIONER:** Gary J. Yerman, New York, NY. 22 23 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 24 Attorney General; Janice K. Redfern; 25 Lindsay B. Glauner, Senior 26 Litigation Counsel, Office of 27 Immigration Litigation, United 28 States Department of Justice, 29 Washington, DC. 302 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Jin Shuan Wang, a native and citizen of the 5 People’s Republic of China, seeks review of a July 14, 2016, 6 decision of the BIA denying Wang’s untimely motion to reopen 7 proceedings to apply for asylum, withholding of removal, and 8 relief under the Convention Against Torture (“CAT”). In re Jin 9 Shuan Wang, No. A077 977 498 (B.I.A. July 14, 2016). We assume 10 the parties’ familiarity with the underlying facts and 11 procedural history in this case. 12 In lieu of filing a brief, the Government moves for summary 13 denial of Wang’s petition for review. Summary denial is 14 warranted only if a petition is frivolous, Pillay v. INS , 45 15 F.3d 14, 17 (2d Cir. 1995), and Wang has filed his merits brief. 16 Accordingly, we treat the Government’s motion as a response to 17 that brief, and deny the petition. 18 We review the BIA’s denial of Wang’s motion to reopen for 19 abuse of discretion, and review the BIA’s factual findings 20 regarding country conditions under the substantial evidence 213 standard. Jian Hui Shao v. Mukasey , 546 F.3d 138, 168-69 (2d 1 Cir. 2008); Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). 2 It is undisputed that Wang’s 2016 motion to reopen was 3 untimely because his removal order became final in 2008. See 4 8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for 5 motions to reopen); 8 C.F.R. § 1003.2(c)(2)(same). Although 6 this time limitation does not apply if the motion is “based on 7 changed country conditions” since the time of the original 8 hearing, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 9 § 1003.2(c)(3)(ii), as discussed below, the BIA’s conclusion 10 that Wang failed to establish such a change is supported by 11 substantial evidence, see Jian Hui Shao , 546 F.3d at 169. 12 The BIA reasonably concluded that Wang did not establish 13 a material change in country conditions, given that a 2005 State 14 Department report in the record reflected that members of 15 unregistered churches in China face d mistreatment including 16

arrest, imprisonment, interrogation, and in some cases, “severe 17 physical abuse.” U.S. State Dep’t, China: Profile of Asylum 18 Claims and Country Conditions 5-6 (Oct. 2005); Jian Hui Shao , 19 546 F.3d at 157. Accordingly, Wang’s more recent evidence 20 showing arrests and beatings of unregistered church members did 214 not reflect any material change in conditions. In re S-Y-G- , 1 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether 2 evidence accompanying a motion to reopen demonstrates a 3 material change in country conditions that would justify 4 reopening, [the agency] compare[s] the evidence of country 5 conditions submitted with the motion to those that existed at 6 the time of the merits hearing below.”). Given the evidence 7 of a continuation of conditions, the BIA did not abuse its 8 discretion in denying Wang’s motion to reopen as untimely. See 9 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). 10 Because the BIA’s timeliness ruling is dispositive, we do 11 not reach the BIA’s alternative holding regarding Wang’s prima 12 facie eligibility for asylum, withholding of removal, or CAT 13 relief. 8 U.S.C. § 1229a(c)(7)(C)(i); INS v. Bagamasbad , 429 14 U.S. 24, 25 (1976). 15 For the foregoing reasons, the petition for review is 16 DENIED. As we have completed our review, the Government’s 17 motion for summary denial and Petitioner’s stay motion are 18 DISMISSED as moot. Any pending request for oral argument in 19 this petition is DENIED in accordance with Federal Rule of 205 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 1 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4