17-1

Ou v. Sessions 

 BIA

 A070 886 882

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 

2 for the Second Circuit, held at the Thurgood Marshall 

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

New York, on the 7th 4 day of June,two thousand eighteen.

5

6 PRESENT:

7 JOSÉ A. CABRANES,

8 DEBRA ANN LIVINGSTON,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 GUO QIN OU,

14 Petitioner,

15

16 v. 17-1

17 NAC

18 JEFFERSON B. SESSIONS III,

19 UNITED STATES ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

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

24

25 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

26 Attorney General; Anthony C. 

27 Payne, Assistant Director; 

28 Kathleen Kelly Volkert, Trial 
2

1 Attorney, Office of Immigration 

2 Litigation, United States 

3 Department of Justice, Washington, 

4 DC.

5

6 UPON DUE CONSIDERATION of this petition for review of a 

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

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED.

10 Petitioner Guo Qin Ou, a native and citizen of the 

11 People’s Republic of China, seeks review of a December 6,

12 2016, decision of the BIA denying his motion to reopen. In 

13 re Guo Qin Ou, No. A 070 886 882 (B.I.A. Dec. 6, 2016). We 

14 assume the parties’ familiarity with the underlying facts and 

15 procedural history in this case.

16 In lieu of filing a brief, the Government moves for 

17 summary denial of Ou’s petition for review. Summary denial 

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

19 45 F.3d 15, 17 (2d Cir. 1995), and Ou has filed his merits 

20 brief. Accordingly, we treat the Government’s motion as a 

21 response to that brief, and deny the petition.

22 We review the BIA’s denial of Ou’s motion to reopen for 

23 abuse of discretion, and review the BIA’s factual findings 
3

1 regarding country conditions under the substantial evidence

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

3 Cir. 2008).

4 It is undisputed that Ou’s 2016 motion to reopen was 

5 untimely because his removal order became final in 2002. See

6 8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for 

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

8 this time limitation does not apply if the motion is filed to 

9 apply for asylum “based on changed country conditions” since 

10 the time of the original hearing, 8 U.S.C. 

11 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), as 

12 discussed below, the BIA’s conclusion that Ou failed to 

13 establish such a change is supported by substantial evidence.

14 See Jian Hui Shao, 546 F.3d at 169. 

15 The BIA reasonably concluded that Ou did not establish 

16 a material change in country conditions, given that Ou’s 

17 evidence revealed that the Chinese government has 

18 continuously repressed Christians, especially members of 

19 unregistered churches, since before 1998, with varying 

20 degrees of restriction from region to region. In re S-Y-G-, 

21 24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether 
4

1 evidence accompanying a motion to reopen demonstrates a 

2 material change in country conditions that would justify 

3 reopening, [the BIA] compare[s] the evidence of country 

4 conditions submitted with the motion to those that existed at 

5 the time of the merits hearing below.”). Ou’s argument that 

6 the BIA failed to consider evidence of increased persecution 

7 is without merit given that the BIA extensively cited Ou’s 

8 submissions, which demonstrated that although there were some 

9 instances of increased persecution of Christians, conditions 

10 varied widely by region. Further, Ou’s evidence notably 

11 lacked any indication of a deterioration of conditions for 

12 Christians in Fujian Province, Ou’s home region. See Jian

13 Hui Shao, 546 F.3d at 149-50, 165-66 (upholding BIA’s 

14 conclusion that when fear of persecution is based on 

15 enforcement of a policy that varies by region, it is the 

16 applicant’s burden to show enforcement of the policy in his 

17 or her home region). 

18 Given the evidence of a continuation of conditions, the 

19 BIA did not abuse its discretion in denying Ou’s motion to 

20 reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. 

21 § 1003.2(c)(2).
5

1 Because the BIA’s timeliness ruling is dispositive, we 

2 do not reach the BIA’s alternative holding regarding Ou’s 

3 prima facie eligibility for asylum. 8 U.S.C. 

4 § 1229a(c)(7)(C)(i); INS v. Bagamasbad, 429 U.S. 24, 25 

5 (1976).

6 For the foregoing reasons, the petition for review is 

7 DENIED. As we have completed our review, the motions for a 

8 stay of removal and summary denial are DENIED. Any pending 

9 request for oral argument in this petition is DENIED in 

10 accordance with Federal Rule of Appellate Procedure 34(a)(2), 

11 and Second Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, 

14 Clerk of Court