17-2731 

Gao v. Barr 

BIA 

Nelson, IJ 

A073 131 789 

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 Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 22nd day of February, two thousand 

nineteen. 

PRESENT: 

ROBERT A. KATZMANN, 

 Chief Judge, 

ROBERT D. SACK, 

DEBRA ANN LIVINGSTON,

Circuit Judges. 

_____________________________________ 

BIN GAO, 

 Petitioner, 

v. 17-2731 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: James A. Lombardi, New York, NY. 

 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Janette L. 

Allen, Senior Litigation Counsel; 

Lance L. Jolley, Trial Attorney, 

Office of Immigration Litigation, 

United States Department of 

Justice, Washington, DC. 
2

UPON DUE CONSIDERATION of this petition for review of a 

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

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED. 

 Petitioner Bin Gao, a native and citizen of the People’s 

Republic of China, seeks review of an August 22, 2017, 

decision of the BIA affirming a February 24, 2017, decision 

of an Immigration Judge (“IJ”) denying Gao’s motion to reopen. 

In re Bin Gao, No. A073 131 789 (B.I.A. Aug. 22, 2017), aff’g

No. A073 131 789 (Immig. Ct. N.Y. City Feb. 24, 2017). We 

assume the parties’ familiarity with the underlying facts and 

procedural history in this case. We have reviewed the BIA’s 

denial of the motion to reopen for abuse of discretion and 

considered whether its conclusion regarding changed country 

conditions is supported by substantial evidence. Jian Hui 

Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 

 Gao moved to reopen in order to apply for asylum, 

asserting that he had converted to Christianity in the United 

States and that worsening conditions for Christians in China 

excused the untimely filing of his motion. It is undisputed 

that Gao’s 2017 motion to reopen was untimely as it was filed 

nearly twenty years after his 1997 deportation order. See
3

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

1003.23(b)(1). However, the time limitation for filing a 

motion to reopen does not apply if reopening is sought to 

apply for asylum and 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 was not available and would not have been 

discovered or presented at the previous proceeding.” 

8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

§§ 1003.2(c)(3)(ii), 1003.23(b)(4)(i). The agency did not 

err in finding that Gao failed to demonstrate such conditions. 

 Gao does not dispute that his conversion to Christianity 

and active religious practice constituted changes in personal 

circumstances that do not fall under the exception for changed 

country conditions to the usual time limitation. See Li Yong 

Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 

2005). Accordingly, Gao had to show a material change in 

conditions in China. Because conditions for Christians in 

China vary by province, Gao had to establish a material change 

relevant to his home province of Fujian. See Jian Hui Shao, 

546 F.3d at 149, 170 (“[P]olicies and the means used to 

enforce them can vary widely from one area of the country to 
4

another. Thus . . . it is appropriate to review the evidence 

to determine, first, what policy applies to the circumstances 

at issue and, second, whether local officials would be 

inclined to view the petitioner’s actions as a violation of 

that policy.”). 

 We find no error in the agency’s conclusion that Gao 

failed to show the relevant change. “In determining whether 

evidence accompanying a motion to reopen demonstrates a 

material change in country conditions that would justify 

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

conditions submitted with the motion to those that existed at 

the time of the merits hearing below.” In re S-Y-G-, 24 I. 

& N. Dec. 247, 253 (BIA 2007). As the BIA stated, the 1995 

U.S. State Department report showed “a longstanding 

restriction by the Chinese government on the public practice 

of Christianity.” Special App. 3. That 1995 report provided 

that “[t]he government generally tolerates the existence and 

activities of the unsanctioned churches,” but “has 

intermittently harassed [and raided and closed] unregistered 

churches, and has declared its intent to register all of them 

by the end of 1995, but implementation continues to be more 

vigorous in some regions than in others.” Admin. Rec. 366. 
5

Concerning Fujian province, the report noted “[a] growing 

number of cases from China, especially from the Fuzhou area 

in Fujian Province, claim persecution on account of 

religion,” and that “religious . . . persecution . . . 

undoubtedly exists . . . [and] [h]ouse churches [in this area] 

are probably monitored and perhaps harassed as elsewhere in 

China, but we have no reports thereof.” Admin. Rec. 366, 

368. By comparison, there is no record evidence of any recent 

religious persecution in Gao’s home province of Fujian. 

Thus, on this record, the agency was not compelled to conclude 

that Gao’s evidence reflected a change in conditions material 

to his fear of harm as a Christian. See Jian Hui Shao, 546 

F.3d at 171. The agency therefore did not abuse its 

discretion in denying Gao’s motion to reopen as untimely. 

See 8 U.S.C. § 1229a(c)(7)(C). 

 The timeliness finding is dispositive, and we do not 

reach the alternate ruling that Gao failed to establish prima 

facie eligibility for relief and did not merit reopening as 

a matter of discretion. See 8 C.F.R. § 1003.23(b)(3) (“The 

Immigration Judge has discretion to deny a motion to reopen 

even if the moving party has established a prima facie case 

for relief.”); INS v. Abudu, 485 U.S. 94, 104–05 (1988) 
6

(observing that the agency may deny an untimely motion for 

failure to demonstrate changed country conditions or prima 

facie eligibility for the underlying relief); INS v. 

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts 

and agencies are not required to make findings on issues the 

decision of which is unnecessary to the results they reach.”). 

To the extent Gao challenges the agency’s decision not to 

exercise its authority to reopen sua sponte, we lack 

jurisdiction to review that determination. See Centurion v. 

Sessions, 860 F.3d 69, 74 (2d Cir. 2017) (“We do not have 

jurisdiction to review the . . . entirely discretionary 

refusal to reopen a case sua sponte.” (internal quotation 

marks omitted)). 

 For the foregoing reasons, the petition for review is 

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, 

Clerk of Court