15-2536 Chang v. Lynch BIA Morace, IJ A074 588 454 

### 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 **13 th**  **day of October, two thousand sixteen.** 4 5 **PRESENT:** 6 **RICHARD C. WESLEY,** 7 **PETER W. HALL,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **SHAN DING CHANG, AKA DING SHAN** 13 **ZHANG,** 14 Petitioner **,** 15 16 **v. 15-2536** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Gang Zhou, New York, NY. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Mary 27 Jane Candaux, Assistant Director; 28 Matthew A. Connelly, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 Washington, DC. 322 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 Shan Ding Chang, a nativ e and citizen of the 5 People’s Republic of China, seeks review of a July 31, 2015, 6 decision of the BIA affirming an Immigration Judge’s (“IJ”) 7 March 19, 2014, denial of his motion to reopen. In re Shan Ding 8 Chang, No. A074 588 454 (B.I.A. July 31, 2015), aff’g No. A074 9 588 454 (Immig. Ct. N.Y. City Mar. 19, 2014). We assume the 10 parties’ familiarity with the underlying facts and procedural 11 history in this case. 12 We have reviewed both the BIA’s and IJ’s decisions “for the 13 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec. , 14 448 F.3d 524, 528 (2d Cir. 2006). We review the denial of a 15 motion to reopen for abuse of discretion, and review any factual 16 findings regarding country conditions for substantial 17 evidence. Jian Hui Shao v. Mukasey , 546 F.3d 138, 168-69 (2d 18 Cir. 2008). An alien seeking to reopen proceedings may file 19 one motion to reopen no later than 90 days after the date on 20 which the final administrative decision was rendered. 8 U.S.C. 213 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is 1 undisputed that Chang’s 2013 motion to reopen was untimely 2 because he filed it sixteen years after his order of deportation 3 became final in 1997, and number barred, because it was his 4 second motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A), 5 (C)(i); 8 C.F.R. § 1003.2(c)(2). 6 These time and number limitations do not apply if the 7 petitioner requests reopening to apply for asylum “based on 8 changed country conditions arising in the country of 9 nationality or the country to which r emoval has been ordered, 10 if such evidence is material and was not available and would 11 not have been discovered or presented at the previous 12 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 13 § 1003.2(c)(3). 14 Here, the agency did not abuse its discretion in finding 15 that the evidence Chang submitted did not establish a material 16 change since his 1997 immigration proceedings. See 8 U.S.C. 17 § 1229a(c)(7)(C)(ii); In re S-Y-G- , 24 I. & N. Dec. 247, 253 18 (BIA 2007) (“In determining whether evidence accompanying a 19 motion to reopen demonstrates a material change in country 20 conditions that would justify reopening, [the BIA] compare[s] 214 the evidence of country conditions submitted with the motion 1

to those that existed at the time of the merits hearing below.”). 2 Chang alleged three bases for changed conditions: his China 3 Democracy Party (“CDP”) membership and political activities in 4 the United States; China’s awareness of those activities as 5 evidenced by his difficulty obtaining a Chinese passport; and 6 China’s persecution of political dissidents active in China. 7 The agency found that Chang’s recent membership in the CDP 8 was a change in personal circumstances, not a change in country 9 conditions. That was not error. See Wei Guang Wang v. BIA , 10 437 F.3d 270, 273–74 (2d Cir. 20 06) (making clear that the time 11 and numerical limitations on motions to reopen may not be 12 suspended because of a “self-induced change in personal 13 circumstances” that is “entirely of [the applicant’s] own 14 making after being ordered to leave the United States”). 15 As the BIA found, Chang also failed to demonstrate a change 16 in the Chinese government’s treatment of similarly situated 17 political dissidents. His evidence largely addressed the 18 treatment of dissidents active within China. To show a 19 material change as needed for reopening, Chang had to show a 20 change in treatment for those participating in political 215 activities outside of the United States. 8 C.F.R. 1 § 1208.13(b)(2)(iii)(A) (To establish a well-founded fear of 2 persecution, an applicant may “establish[] that there is a 3 pattern or practice . . . of persecution of a group of persons 4 similarly situated to the applicant”); Y.C. v. Holder , 741 F.3d 5 324, 334 (2d Cir. 2013) (holding that petitioner had not 6 established fear of future persecution because “[e]ven if 7 Chinese authorities were aware of her pro-democracy activities 8 [in the United States], [] nothing in the record compels a 9 finding that Y.C. would be persecuted on that basis if returned 10 to China”). 11 Chang’s final basis for changed conditions fails for two 12 reasons. We have previously rejected the argument that the 13 Chinese government’s awareness of CDP activity in the United 14 States can alone constitute a material change in conditions 15 sufficient for reopening, albeit in an unpublished decision. 16 See Han Ying Zhu v. Holder , 531 F. App’x 56, 57 (2d Cir. 2013). 17 Even assuming such proof were sufficient to excuse a time-and 18 number-barred motion to reopen, Chang submitted no clear 19 evidence that the Chinese government is aware of his CDP 20 activity in the United States. He claimed that he did not give 216 the Chinese consulate the name or address of the CDP in the 1 United States (and did not specify what information he did give) 2 and did not complete the paperwork for his passport application 3 that would have required him to provide information on his CDP 4 membership. Accordingly, it is unclear whether the consulate 5 denied his passport application based on knowledge of his CDP 6 activity or his failure to complete the application. See Jian 7 Hui Shao , 546 F.3d at 157-58 (“Thus, when a petitioner bears 8 the burden of proof, his failure to adduce evidence can itself 9 constitute the ‘substantial evidence’ necessary to support the 10 agency’s challenged decision.”). 11 Chang’s remaining arguments lack me rit. The BIA did not 12 engage in improper fact finding. The IJ and the BIA made 13 similar findings regarding C hang’s inability to demonstrate 14 changed country conditions or that China persecuted similarly 15 situated to individuals for their affiliation with CDP. See 16 8 C.F.R. § 1003(d)(3) (providing that BIA reviews IJ’s findings 17 of fact only for clear error). Neither did the BIA ignore 18 evidence nor mischaracterize Chang’s motion to reopen as based 19 solely on his experiences with the Chinese consulate—the BIA 20 made clear that it considered Chang’s evidence, but found that 217 he had not established that China had persecuted anyone for CDP 1 activities occurring exclusively in the United States. 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our rev iew, any stay of removal 4 that the Court previously granted in this petition is VACATED, 5 and any pending motion for a stay of removal in this petition 6 is DISMISSED as moot. Any pending request for oral argument 7 in this petition is DENIED in accordance with Federal Rule of 8 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 9 34.1(b). 10

FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12