16-399 Hu v. Sessions BIA A096 253 175 

### 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 **24 th**  **day of April, two thousand seventeen.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **PETER W. HALL,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIAO FANG HU,** 13 Petitioner **,** 14 15 **v. 16-399** 16 **NAC** 17 **JEFFERSON B. SESSIONS III, UNITED** 18 **STATES ATTORNEY GENERAL,** 19 Respondent.  20

**_____________________________________** 21 22 23 **FOR PETITIONER:** Richard Tarzia, Belle Mead, New 24 Jersey. 25 26

 Pursuant to Federal Rule of Appellate Proce dure 43(c)(2), Attorney General Jefferson B. Sessions III is automatically substituted for former Attorney General Loretta E. Lynch as Respondent.2 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 1 Assistant Attorney General; Anthony 2 P. Nicastro, Assistant Director; 3 Drew C. Brinkman, Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 11

DENIED. 12 Petitioner Xiao Fang Hu, a n ative and citizen of China, 13 seeks review of a January 19, 20 16, decision of the BIA denying 14 her motion to reopen. In re Xiao Fang Hu, No. A096 253 175 15 (B.I.A. Jan. 19, 2016). We assume the parties’ familiarity 16 with the underlying facts and procedural history in this case. 17 “We review the denial of motions to reopen immigration 18 proceedings for abuse of discretion, mindful that motions to 19 reopen ‘are disfavored.[’]” Ali v. Gonzales , 448 F.3d 515, 517 20 (2d Cir. 2006) (quoting INS v. Doherty , 502 U.S. 314, 323 21 (1992)). When the BIA considers relevant evidence of country 22 conditions in evaluating a motion to reopen, we review the BIA’s 23 factual findings under the substantial evidence standard. 24 Jian Hui Shao v. Mukasey , 546 F.3d 138, 169 (2d Cir. 2008). 253 An alien seeking to reopen proceedings may file one motion 1 to reopen no later than 90 days after the date on which the final 2 administrative decision was rendered. 8 U.S.C. 3 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is 4 undisputed that Hu’s motion to reopen was untimely because it 5 was filed more than eleven years after her order of removal 6 became final. See 8 U.S.C. § 1101(a)(47)(B)(i). However, the 7 time limitation does not apply if the motion requests reopening 8 to apply for asylum and “is based on changed country conditions 9 arising in the country of nationality or the country to which 10 removal has been ordered, if such evidence is material and was 11 not available and would not have been discovered or presented 12 at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 13 see also 8 C.F.R. § 1003.2(c)(3). 14 Substantial evidence supports the BIA’s finding that Hu 15 failed to establish a material change in conditions for 16 underground Christians in China since her 2003 hearing. See 17

In re S-Y-G- , 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In 18 determining whether evidence accompanying a motion to reopen 19 demonstrates a material change in country conditions that would 20 justify reopening, [the BIA] compare[s] the evidence of country 21 conditions submitted with the motion to those that existed at 224 the time of the merits hearing below.”); see also Xiao Ji Chen 1 v. U.S. Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006) 2 (holding that the weight accorded to evidence lies largely 3 within the discretion of the agency). For example, the 2013 4

U.S. Department of State International Religious Freedom Report 5 provides that China has been designated as a County of 6 Particular Concern under the International Religious Freedom 7 Act since 1999, “for particularly severe violations of 8 religious freedom,” and that China’s “respect for religious 9 freedom overall remained low during [2013].” A.R. 1145, 1148. 10 And while the 2014 China Aid Report and several news articles 11 describe instances of harassment in Hu’s home province of 12 Zhejiang in 2014 and 2015, the BIA correctly observed that even 13 a worsening recent trend over the last several years does not 14 necessarily represent a material change when compared to the 15 conditions that existed at the time of the 2003 merits hearing. 16

See In re S-Y-G- , 24 I. & N. Dec. at 253; Jian Hui Shao , 546 17 F.3d at 171 (observing that the task of resolving conflicts in 18 the country conditions evidence lies “largely within the 19 discretion of the agency”). Because substantial evidence 20 supports the agency’s finding that Hu did not show a material 21 change in conditions since 2003, the BIA did not abuse its 225 discretion in denying her motion to reopen as untimely. See 1 8 U.S.C. § 1229a(c)(7)(C); Jian Hui Shao , 546 F.3d at 169; Ali , 2 448 F.3d at 517. 3 Lastly, Hu’s assertion that the BIA failed to consider her 4 evidence is without merit. Alt hough the BIA did not 5 specifically discuss all of Hu’s evidence, it need not 6 “expressly parse or refute on the record each individual 7 argument or piece of evidence offered by the petitioner,” Wei 8 Guang Wang v. Bd. of Immigration Appeals , 437 F.3d 270, 275 (2d 9 Cir. 2006) (internal quotation marks omitted), and “[w]e 10

presume that [the BIA] has taken into account all of the evidence 11 before [it], unless the record compellingly suggests 12 otherwise.” Xiao Ji Chen , 471 F.3d at 336 n.17. Here, the BIA 13 acknowledged that reports providing statistics for only the 14 last few years may be useful in establishing a recent trend; 15 however, as noted above, the BIA correctly concluded that a 16 worsening trend over the last several years does not necessarily 17 equate to a material change in conditions since Hu’s 2003 merits 18 hearing. See In re S-Y-G- , 24 I. & N. Dec. at 253. The agency 19 credited Hu’s evidence, but reasonably found that it did not 20 show a material change in conditions. The record therefore 21 does not compellingly suggest that Hu’s evidence was ignored. 226 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our rev iew, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DENIED as moot. Any pending request for oral argument in 5 this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 7 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court 10