17-1618 Yang v. Sessions BIA A072 302 784 

### 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** 1 **for the Second Circuit, held at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of** 3 **New York, on the 11 th**  **day of July, two thousand eighteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **REENA RAGGI,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **HONG XIONG YANG,** 13 Petitioner **,** 14 15 **v. 17-1618** 16 **NAC** 17 18 **JEFFERSON B. SESSIONS III,** 19 **UNITED STATES ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Mike P. Gao, Flushing, NY. 24 25 **FOR RESPONDENT:** Chad A. Readler, Principal Deputy 26 Assistant Attorney General; 27 Bernard A. Joseph, Senior 28 Litigation Counsel; Jason Wisecup, 292 Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED. 9 Petitioner Hong Xiong Yang, a native and citizen of the 10 People’s Republic of China, seeks review of an April 27, 2017, 11 decision of the BIA, denying his motion to reopen. In re 12 Hong Xiong Yang, No. A072 302 784 (B.I.A. Apr. 27, 2017). We 13 assume the parties’ familiarity with the underlying facts and 14 procedural history in this case. 15 The applicable standards of r eview are well established. 16 See Jian Hui Shao v. Mukasey , 546 F.3d 138, 168-69 (2d Cir. 17 2008). In his motion to reopen, Yang asserted that 18 conditions for pro-democracy activists had worsened in China, 19 excusing the untimely filing of his motion and demonstrating 20 his prima facie eligibility for asylum based on his membership 21 in the Democracy Party of China (“CDP”) in the United States. 223 It is undisputed that Yang’s 2017 motion to reopen was 1 untimely filed more than fourteen years after his removal 2 order became final in 2002. See 8 U.S.C. 3 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the 4 time limitation for filing a motion to reopen does not apply 5 if reopening is sought to apply for asylum and the motion “is 6 based on changed country conditions arising in the country of 7 nationality or the country to which r emoval has been ordered, 8 if such evidence is material and was not available and would 9 not have been discovered or presented at the previous 10 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 11 § 1003.2(c)(3). The BIA did not err in finding that Yang 12 failed to demonstrate such conditions. 13 “In determining whether evidence accompanying a motion 14 to reopen demonstrates a material change in country 15 conditions that would justify reopening, [the BIA] compare[s] 16 the evidence of country conditions submitted with the motion 17 to those that existed at the time of the merits hearing 18

below.” In re S-Y-G- , 24 I. & N. Dec. 247, 253 (B.I.A. 2007). 19 As the BIA found, reports from the U.S. Department of State 20 demonstrate that the Chinese government has repressed pro- 214 democracy activists since before Yang’s 2000 hearing. And 1 the BIA did not err in declining to credit the unsworn letter 2 from Yang’s mother stating that police in China had discovered 3 Yang’s CDP activities in the United States. See Y.C. v. 4

Holder , 741 F.3d 324, 334 (2d Cir. 2013); Qin Wen Zheng v. 5

Gonzales , 500 F.3d 143, 146-49 (2d Cir. 2007) (concluding 6 that agency may choose not to credit documentary evidence 7 submitted by movant found to be not credible in underlying 8 proceedings). 9 Accordingly, because the BIA reasonably concluded that 10 Yang failed to demonstrate a m aterial change in conditions in 11 China, it did not abuse its discretion in denying Yang’s 12 motion as untimely. See 8 U.S.C. § 1229a(c)(7)(C). Because 13 the denial as untimely is dispositive, we do not reach the 14 BIA’s alternative basis for denying Yang’s motion—his failure 15 to establish his prima facie eligibility for relief. See INS 16 v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule 17 courts and agencies are not required to make findings on 18 issues the decision of which is unnecessary to the results 19 they reach.”). 205 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, the pending motion 2 for a stay of removal in this petition is DENIED as moot. 3

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FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court 6 7