14-1304 Wan v. Sessions BIA A073 533 991 

### 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 **9 th**  **day of August, two thousand seventeen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PIERRE N. LEVAL,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **AIWEI WAN,** 13 Petitioner **,** 14 15 **v. 14-1304** 16 **NAC** 17 18 **JEFFERSON B. SESSIONS III,** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Theodore N. Cox, New York, New York. 24 25 **FOR RESPONDENT:** Joyce R. Branda, Acting Assistant 26 Attorney General; Mary Jane Candaux, 27 Assistant Director; Michael C. 28 Heyse, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 322 10242016-21 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 Aiwei Wan, a native and citizen of China, seeks 5 review of an April 10, 2014, decision of the BIA denying her 6 motion to reconsider and reopen. In re Aiwei Wan, No. A073 533 7 991 (B.I.A. Apr. 10, 2014). We assume the parties’ familiarity 8 with the underlying facts and procedural history in this case. 9 The applicable standards of r eview are well established. 10 See Jian Hui Shao v. Mukasey , 546 F.3d 138, 168-69 (2d Cir. 11 2008). Wan filed with the BIA a motion to reconsider the denial 12 of her second motion to reopen as untimely and a third motion 13 to reopen. In support, Wan submitted evidence related to her 14 claim that she fears persecution based on the birth of her 15 children in the United States purportedly in violation of 16 China’s population control program. At bottom, the issue 17 underlying both reconsideration and reopening is whether Wan’s 18 proceedings should have been reopened to allow her to apply for 19 asylum based on a change in conditions in China. 20 It is undisputed that Wan’s motions to reopen were untimely 21 and number barred because they were her second and third motions 22 filed more than a decade after her deportation order became 233 10242016-21 final. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 1 § 1003.2(c)(2). These time and numerical limitations do not 2 apply if the motion is to reopen proceedings in order to apply 3 for asylum “based on changed country conditions arising in the 4 country of nationality or the country to which removal has been 5 ordered, if such evidence is material and was not available and 6 would not have been discovered or presented at the previous 7 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 8 § 1003.2(c)(3)(ii). 9

For largely the same reasons as this Court set forth in Jian 10 Hui Shao , we find no error in the agency’s determination that 11 Wan failed to demonstrate a material change in country 12 conditions or her prima facie eligibility for relief. See 546 13 F.3d at 158-72. As with the evidence discussed in Jian Hui 14 Shao , Wan’s evidence related to Zhejiang Province is 15 insufficient because it does not discuss the use of force in 16 the enforcement of the family planning policy. See id. at 17 160-61, 165-66, 171-72. 18 For the foregoing reasons, the petition for review is 19 DENIED. As we have completed our rev iew, any stay of removal 20 that the Court previously granted in this petition is VACATED, 21 and any pending motion for a stay of removal in this petition 22 is DISMISSED as moot. Any pending request for oral argument 234 10242016-21 in this petition is DENIED in accordance with Federal Rule of 1 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 2 34.1(b). 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5