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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

5th 4 day of December, two thousand seventeen. 

5 

6 PRESENT: 

7 GUIDO CALABRESI,

8 JOSÉ A. CABRANES, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 JIN SHUAN WANG, AKA YAN SHI YU, 

14 Petitioner, 

15 v. 16-2714 

16 NAC 

17 JEFFERSON B. SESSIONS III, 

18 UNITED STATES ATTORNEY GENERAL, 

19 Respondent. 

20 _____________________________________ 

21 

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

23 

24 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

25 Attorney General; Janice K. Redfern; 

26 Lindsay B. Glauner, Senior 

27 Litigation Counsel, Office of 

28 Immigration Litigation, United 

29 States Department of Justice, 

30 Washington, DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner Jin Shuan Wang, a native and citizen of the 

6 People’s Republic of China, seeks review of a July 14, 2016, 

7 decision of the BIA denying Wang’s untimely motion to reopen 

8 proceedings to apply for asylum, withholding of removal, and 

9 relief under the Convention Against Torture (“CAT”). In re Jin 

10 Shuan Wang, No. A077 977 498 (B.I.A. July 14, 2016). We assume 

11 the parties’ familiarity with the underlying facts and 

12 procedural history in this case. 

13 In lieu of filing a brief, the Government moves for summary 

14 denial of Wang’s petition for review. Summary denial is 

15 warranted only if a petition is frivolous, Pillay v. INS, 45 

16 F.3d 14, 17 (2d Cir. 1995), and Wang has filed his merits brief. 

17 Accordingly, we treat the Government’s motion as a response to 

18 that brief, and deny the petition. 

19 We review the BIA’s denial of Wang’s motion to reopen for 

20 abuse of discretion, and review the BIA’s factual findings 

21 regarding country conditions under the substantial evidence 
3

1 standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d 

2 Cir. 2008); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). 

3 It is undisputed that Wang’s 2016 motion to reopen was 

4 untimely because his removal order became final in 2008. See

5 8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for 

6 motions to reopen); 8 C.F.R. § 1003.2(c)(2)(same). Although 

7 this time limitation does not apply if the motion is “based on 

8 changed country conditions” since the time of the original 

9 hearing, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 

10 § 1003.2(c)(3)(ii), as discussed below, the BIA’s conclusion 

11 that Wang failed to establish such a change is supported by 

12 substantial evidence, see Jian Hui Shao, 546 F.3d at 169. 

13 The BIA reasonably concluded that Wang did not establish 

14 a material change in country conditions, given that a 2005 State 

15 Department report in the record reflected that members of 

16 unregistered churches in China faced mistreatment including 

17 arrest, imprisonment, interrogation, and in some cases, “severe 

18 physical abuse.” U.S. State Dep’t, China: Profile of Asylum 

19 Claims and Country Conditions 5-6 (Oct. 2005); Jian Hui Shao, 

20 546 F.3d at 157. Accordingly, Wang’s more recent evidence 

21 showing arrests and beatings of unregistered church members did 
4

1 not reflect any material change in conditions. In re S-Y-G-, 

2 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether 

3 evidence accompanying a motion to reopen demonstrates a 

4 material change in country conditions that would justify 

5 reopening, [the agency] compare[s] the evidence of country 

6 conditions submitted with the motion to those that existed at 

7 the time of the merits hearing below.”). Given the evidence 

8 of a continuation of conditions, the BIA did not abuse its 

9 discretion in denying Wang’s motion to reopen as untimely. See 

10 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). 

11 Because the BIA’s timeliness ruling is dispositive, we do 

12 not reach the BIA’s alternative holding regarding Wang’s prima 

13 facie eligibility for asylum, withholding of removal, or CAT 

14 relief. 8 U.S.C. § 1229a(c)(7)(C)(i); INS v. Bagamasbad, 429 

15 U.S. 24, 25 (1976). 

16 For the foregoing reasons, the petition for review is 

17 DENIED. As we have completed our review, the Government’s 

18 motion for summary denial and Petitioner’s stay motion are 

19 DISMISSED as moot. Any pending request for oral argument in 

20 this petition is DENIED in accordance with Federal Rule of 
5

1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

2 34.1(b). 

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk