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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

13th 4 day of October, two thousand sixteen. 

5 

6 PRESENT: 

7 RICHARD C. WESLEY,

8 PETER W. HALL, 

9 CHRISTOPHER F. DRONEY,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 SHAN DING CHANG, AKA DING SHAN 

14 ZHANG, 

15 Petitioner, 

16 

17 v. 15-2536 

18 NAC 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Gang Zhou, New York, NY. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; Mary 

28 Jane Candaux, Assistant Director; 

29 Matthew A. Connelly, Trial Attorney, 

30 Office of Immigration Litigation, 

31 United States Department of Justice, 

32 Washington, DC. 
2

1 UPON DUE CONSIDERATION of this petition for review of a 

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

4 DENIED. 

5 Petitioner Shan Ding Chang, a native and citizen of the 

6 People’s Republic of China, seeks review of a July 31, 2015, 

7 decision of the BIA affirming an Immigration Judge’s (“IJ”) 

8 March 19, 2014, denial of his motion to reopen. In re Shan Ding 

9 Chang, No. A074 588 454 (B.I.A. July 31, 2015), aff’g No. A074 

10 588 454 (Immig. Ct. N.Y. City Mar. 19, 2014). We assume the 

11 parties’ familiarity with the underlying facts and procedural 

12 history in this case. 

13 We have reviewed both the BIA’s and IJ’s decisions “for the 

14 sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 

15 448 F.3d 524, 528 (2d Cir. 2006). We review the denial of a 

16 motion to reopen for abuse of discretion, and review any factual 

17 findings regarding country conditions for substantial 

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

19 Cir. 2008). An alien seeking to reopen proceedings may file 

20 one motion to reopen no later than 90 days after the date on 

21 which the final administrative decision was rendered. 8 U.S.C. 
3

1 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is 

2 undisputed that Chang’s 2013 motion to reopen was untimely 

3 because he filed it sixteen years after his order of deportation 

4 became final in 1997, and number barred, because it was his 

5 second motion to reopen. See 8 U.S.C. § 1229a(c)(7)(A), 

6 (C)(i); 8 C.F.R. § 1003.2(c)(2). 

7 These time and number limitations do not apply if the 

8 petitioner requests reopening to apply for asylum “based on 

9 changed country conditions arising in the country of 

10 nationality or the country to which removal has been ordered, 

11 if such evidence is material and was not available and would 

12 not have been discovered or presented at the previous 

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

14 § 1003.2(c)(3). 

15 Here, the agency did not abuse its discretion in finding 

16 that the evidence Chang submitted did not establish a material 

17 change since his 1997 immigration proceedings. See 8 U.S.C. 

18 § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24 I. & N. Dec. 247, 253 

19 (BIA 2007) (“In determining whether evidence accompanying a 

20 motion to reopen demonstrates a material change in country 

21 conditions that would justify reopening, [the BIA] compare[s] 
4

1 the evidence of country conditions submitted with the motion 

2 to those that existed at the time of the merits hearing below.”). 

3 Chang alleged three bases for changed conditions: his China 

4 Democracy Party (“CDP”) membership and political activities in 

5 the United States; China’s awareness of those activities as 

6 evidenced by his difficulty obtaining a Chinese passport; and 

7 China’s persecution of political dissidents active in China. 

8 The agency found that Chang’s recent membership in the CDP 

9 was a change in personal circumstances, not a change in country 

10 conditions. That was not error. See Wei Guang Wang v. BIA, 

11 437 F.3d 270, 273–74 (2d Cir. 2006) (making clear that the time 

12 and numerical limitations on motions to reopen may not be 

13 suspended because of a “self-induced change in personal 

14 circumstances” that is “entirely of [the applicant’s] own 

15 making after being ordered to leave the United States”). 

16 As the BIA found, Chang also failed to demonstrate a change 

17 in the Chinese government’s treatment of similarly situated 

18 political dissidents. His evidence largely addressed the 

19 treatment of dissidents active within China. To show a 

20 material change as needed for reopening, Chang had to show a 

21 change in treatment for those participating in political 
5

1 activities outside of the United States. 8 C.F.R. 

2 § 1208.13(b)(2)(iii)(A) (To establish a well-founded fear of 

3 persecution, an applicant may “establish[] that there is a 

4 pattern or practice . . . of persecution of a group of persons 

5 similarly situated to the applicant”); Y.C. v. Holder, 741 F.3d 

6 324, 334 (2d Cir. 2013) (holding that petitioner had not 

7 established fear of future persecution because “[e]ven if 

8 Chinese authorities were aware of her pro-democracy activities 

9 [in the United States], [] nothing in the record compels a 

10 finding that Y.C. would be persecuted on that basis if returned 

11 to China”). 

12 Chang’s final basis for changed conditions fails for two 

13 reasons. We have previously rejected the argument that the 

14 Chinese government’s awareness of CDP activity in the United 

15 States can alone constitute a material change in conditions 

16 sufficient for reopening, albeit in an unpublished decision. 

17 See Han Ying Zhu v. Holder, 531 F. App’x 56, 57 (2d Cir. 2013). 

18 Even assuming such proof were sufficient to excuse a time-and 

19 number-barred motion to reopen, Chang submitted no clear 

20 evidence that the Chinese government is aware of his CDP 

21 activity in the United States. He claimed that he did not give 
6

1 the Chinese consulate the name or address of the CDP in the 

2 United States (and did not specify what information he did give) 

3 and did not complete the paperwork for his passport application 

4 that would have required him to provide information on his CDP 

5 membership. Accordingly, it is unclear whether the consulate 

6 denied his passport application based on knowledge of his CDP 

7 activity or his failure to complete the application. See Jian 

8 Hui Shao, 546 F.3d at 157-58 (“Thus, when a petitioner bears 

9 the burden of proof, his failure to adduce evidence can itself 

10 constitute the ‘substantial evidence’ necessary to support the 

11 agency’s challenged decision.”). 

12 Chang’s remaining arguments lack merit. The BIA did not 

13 engage in improper fact finding. The IJ and the BIA made 

14 similar findings regarding Chang’s inability to demonstrate 

15 changed country conditions or that China persecuted similarly 

16 situated to individuals for their affiliation with CDP. See

17 8 C.F.R. § 1003(d)(3) (providing that BIA reviews IJ’s findings 

18 of fact only for clear error). Neither did the BIA ignore 

19 evidence nor mischaracterize Chang’s motion to reopen as based 

20 solely on his experiences with the Chinese consulate—the BIA 

21 made clear that it considered Chang’s evidence, but found that 
7

1 he had not established that China had persecuted anyone for CDP 

2 activities occurring exclusively in the United States. 

3 For the foregoing reasons, the petition for review is 

4 DENIED. As we have completed our review, any stay of removal 

5 that the Court previously granted in this petition is VACATED, 

6 and any pending motion for a stay of removal in this petition 

7 is DISMISSED as moot. Any pending request for oral argument 

8 in this petition is DENIED in accordance with Federal Rule of 

9 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 

10 34.1(b). 

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk