17

- 1 Ou v. Sessions BIA A 070 886 882



### 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**  **ELECT RONIC 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 Ma**  **rshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 7**  **th da**  **y of**  **June ,**  **two thousand eighteen** 
**.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **DEBRA ANN LIVINGSTON ,**  8 **SUSAN L. CARNEY ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GUO QIN OU**  **,** 13 **Petitioner ,**  14 15

**v. 17** 
**- 1**  16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL**  **,** 19 **Respondent .**  20

**_____________________________________** 21 22 **FOR PETITIONER :**  Gary J. Yerman, New York, NY

. 23 24 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 25 Attorney General ; Anthony C. 26 Payne , Assistant Director; 27 Kathleen Kelly Volkert , Trial 282 Attorney, Office of Immigration 1 Litigation , United States 2 Department of Justice, Washington, 3 D C. 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 petitio n for review 8

is DENIED

. 9
Petitioner Guo Qin Ou , a native and citizen of the 10
People’s Republic of China, seeks review of a December 6 , 11

2016 , de cision of the BIA denying hi s motion to reopen

. In 12

re Guo Qin Ou , No. A 070 886 882 (B.I.A. Dec

. 6, 2016 ). We 13
assume the parties’ familiarity with the underlying facts and 14
procedural history in this case. 15
In lieu of filing a brief, the Government moves for 16
summary denial of Ou’s petition for review. Summary denial 17
is warranted only if a petition is frivolous, Pillay v. INS , 18

45 F.3d 15, 17 (2d Cir. 1995), and Ou has filed his merits 19
brief. Accordingly, we treat the Government’s motion as a 20
response to that brief, and deny the petition. 21

We review the BIA’s denial of Ou’s motion to reopen for 22
abuse of discretion, and review the BIA’s factual findings 233 regarding country conditions under the substantial evidence 1

standard. Jian Hui Shao v. Mukasey , 546 F.3d 138, 16 8

- 69 (2d 2

Cir. 2008). 3
It is undisputed that Ou’s 2016 motion to reopen was 4
untimely because his re moval order became final in 2002

. See 5

8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90

- day filing period for 6

mot ions to reopen); 8 C.F.R. § 1003.2(c)(2)(same). Although 7
this time limitation does not apply if the motion is filed to 8

apply for asylum “based on changed country conditions” since 9
the time of the original hearing, 8 U.S.C. 10

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

discussed below, the BIA’s conclusion that Ou failed to 12
establish such a change is su pported by substantial evidence. 13

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

The BIA reasonably concluded that Ou did not establish 15
a material change in country conditions, given that Ou’s 16

evidence revealed that the Chinese government has 17
continuously repressed Christians, especially members of 18
unregistered churches, since before 1998, with varying 19
degrees of restriction from region to region. In re S

- Y

- G

- , 20
24 I. & N. Dec. 247, 253 (BIA 2007) (“In determining whether 214 evidence accompanying a motion to reopen demonstrates a 1
material change in country conditions that would justify 2
reopening, [the BIA ] compare[s] the evidence of country 3

conditions submitted wi th the motion to those that existed at 4
the time of the merits hearing below .”)

. Ou’s argument that 5
the BIA failed to consider evidence of increased persecution 6
is without merit given that the BIA extensively cited Ou’s 7

submissions, which demonstrated th a t although there were some 8
instances of increased persecution of Christians, conditions 9

varied widely by region . Further, Ou’s evidence notably 10
lacked any indication of a deterioration of conditions for 11
Christians in Fujian P rovince, Ou’s home region

. See Jian 12

Hui Shao , 546 F.3d at 149

- 50, 165

- 66 (upholding BIA’s 13
conclusion that when fear of persecution is based on 14
enforcement of a policy that varies by region, it is the 15
applicant’s burden to show enforcement of the policy in h is 16

or her home region)

. 17

Given the evidence of a continuation of conditions, the 18

BIA did not abuse its discretion in denying Ou’s motion to 19
reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. 20

§ 1003.2(c)(2)

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

do not reach the BIA’s alternative holding regarding Ou’s 2
prima facie eligibility for asylum

. 8 U.S.C. 3

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

(1976). 5
For the foregoing reasons, the petition for review is 6

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

stay of removal and summary denial are DENI ED. Any pending 8
request for oral argument in this petition is DENIED in 9
accordance with Federal Rule of Appellate Procedure 34(a)(2), 10

and Second Circuit Local Rule 34.1(b). 11

FOR THE COURT: 12 Catherine O ’ Hagan Wolfe, 13 Clerk of Court 14