14-256 (L) 

Xia v. Sessions 

BIA 

Videla, IJ 

A075 981 406 

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 

9th 4 day of May, two thousand seventeen. 

5 

6 PRESENT: 

7 GUIDO CALABRESI,

8 ROSEMARY S. POOLER, 

9 CHRISTOPHER F. DRONEY, 

10 Circuit Judges. 

11 _____________________________________ 

12 

13 XIAO YAN XIA, 

14 Petitioner, 

15 14-256(L), 

16 v. 15-4129(CON) 

17 NAC 

18 JEFFERSON B. SESSIONS III, 

19 UNITED STATES ATTORNEY GENERAL, 

20 

 Respondent. 21 

22 _____________________________________ 

23 

24 FOR PETITIONER: Richard Tarzia, Belle Mead, NJ. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy 

27 Assistant Attorney General; 

 

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General 

Jefferson B. Sessions III is automatically substituted for former Attorney 

General Loretta E. Lynch as Respondent.
2

1 Michelle G. Latour, Deputy Director; 

2 Victor M. Lawrence, Senior 

3 Litigation Counsel, Office of 

4 Immigration Litigation, United 

5 States Department of Justice, 

6 Washington, DC. 

7 

8 UPON DUE CONSIDERATION of these petitions for review of two 

9 Board of Immigration Appeals (“BIA”) decisions, it is hereby 

10 ORDERED, ADJUDGED, AND DECREED that the petitions for review 

11 are DENIED. 

12 Petitioner Xiao Yan Xia, a native and citizen of the 

13 People’s Republic of China, seeks review of (1) a January 6, 

14 2014, decision of the BIA, affirming a September 19, 2012, 

15 decision of an Immigration Judge (“IJ”) denying Xia’s first 

16 motion to reopen, In re Xiao Yan Xia, No. A075 981 406 (B.I.A. 

17 Jan. 6, 2014), aff’g No. A075 981 406 (Immig. Ct. N.Y. City Sept. 

18 19, 2012), and (2) a December 11, 2015, decision of the BIA 

19 denying her second motion to reopen, In re Xiao Yan Xia, No. 

20 A075 981 406 (B.I.A. Dec. 11, 2015). We assume the parties’ 

21 familiarity with the underlying facts and procedural history 

22 in this case. 

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

24 the sake of completeness.” Wangchuck v. Dep’t of Homeland 

25 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 
3

1 standards of review are well established. See Jian Hui Shao 

2 v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 

3 It is undisputed that Xia’s motions to reopen were untimely 

4 filed more than 13 years after the IJ’s removal order became 

5 final, and that her second motion was number barred. See

6 8 U.S.C. § 1229a(c)(7)(A), (c)(7) (C)(i); 8 C.F.R. 

7 §§ 1003.2(c)(2), 1003.23(b)(1). These time and number 

8 limitations do not apply, however, if the motion is to reopen 

9 in order to apply for asylum and “is based on changed country 

10 conditions arising in the country of nationality or the country 

11 to which removal has been ordered, if such evidence is material 

12 and was not available and would not have been discovered or 

13 presented at the previous proceeding.” 8 U.S.C. 

14 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 

15 §§ 1003.2(c)(3), 1003.23(b)(4)(i). “In determining whether 

16 evidence accompanying a motion to reopen demonstrates a 

17 material change in country conditions that would justify 

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

19 conditions submitted with the motion to those that existed at 

20 the time of the merits hearing below.” In re S-Y-G-, 24 I. & 

21 N. Dec. 247, 253 (B.I.A. 2007). The BIA did not err in finding 

22 that Xia failed to demonstrate such conditions. 
4

1 While the 2014 Annual Report of the China Aid Association 

2 states that “Christians and practitioners of other faiths in 

3 China experienced the harshest persecution seen in over a 

4 decade,” China Aid, 2014 Annual Report Religious and Human 

5 Rights Persecution in China 1 (Jan.-Dec. 2014), available at 

6 http://www.chinaaid.org/2015/04/china-aid-2014-annual-repor

7 t-indicates.html, that report and the other record evidence do 

8 not demonstrate a material change in conditions since the time 

9 of Xia’s hearing in 1998. See In re S-Y-G-, 24 I. & N. Dec. 

10 at 253. Rather, the country conditions evidence from 1998 and 

11 that from the time of Xia’s motions describe the following 

12 similar conditions related to the government’s treatment of 

13 unregistered religious groups: demolition of unregistered 

14 churches; removal of crosses from buildings; detention of 

15 unregistered church leaders; criminal or administrative 

16 penalties for unregistered church practitioners; and 

17 variations in government interference depending on location. 

18 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re S-Y-G-, 24 

19 I. & N. Dec. at 257 (“Change that is incremental or incidental 

20 does not meet the regulatory requirements for late motions of 

21 this type.”). 
5

1 Xia argues that the BIA erred in declining to credit two 

2 letters from her family friends, both of whom claimed to have 

3 been persecuted for worshiping in an unregistered church in 

4 China and asserted that Xia would face a similar fate should 

5 she return. However, the BIA did not abuse its discretion in 

6 declining to credit the letters because they were unsworn and 

7 created for the purpose of supporting Xia’s case. See Y.C. v. 

8 Holder, 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s 

9 decision to afford little weight to husband’s letter because 

10 letter was unsworn and submitted by an interested witness); see 

11 also In re H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 (B.I.A. 

12 2010) (affording minimal weight to documents obtained solely 

13 for removal proceedings by witnesses not subject to 

14 cross-examination), rev’d on other grounds by Hui Lin Huang v. 

15 Holder, 677 F.3d 130 (2d Cir. 2012). 

16 Accordingly, because Xia failed to demonstrate material 

17 changed country conditions in China, the agency did not abuse 

18 its discretion in denying her motions to reopen as untimely. 

19 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §§ 1003.2(c), 

20 1003.23(b). 

21 For the foregoing reasons, these petitions for review are 

22 DENIED. As we have completed our review, any stay of removal 
6

1 that the Court previously granted in these petitions is VACATED, 

2 and any pending motion for a stay of removal in these petitions 

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

4 in these petition is DENIED in accordance with Federal Rule of 

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

6 34.1(b). 

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk