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. 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 **9 th**  **day of May, two thousand seventeen.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **ROSEMARY S. POOLER,** 8 **CHRISTOPHER F. DRONEY,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **XIAO YAN XIA,** 13 Petitioner **,** 14 **14-256(L),** 15 **v. 15-4129(CON)** 16 **NAC** 17 **JEFFERSON B. SESSIONS III,** 18 **UNITED STATES ATTORNEY GENERAL,** 19 20 Respondent **.**  21

**_____________________________________** 22 23 **FOR PETITIONER:** Richard Tarzia, Belle Mead, NJ. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; 27

 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 Michelle G. Latour, Deputy Director; 1 Victor M. Lawrence, Senior 2 Litigation Counsel, Office of 3 Immigration Litigation, United 4 States Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of these petitions for review of two 8 Board of Immigration Appeals (“BIA”) decisions, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petitions for review 10

are DENIED. 11 Petitioner Xiao Yan Xia, a native and citizen of the 12 People’s Republic of China, seeks review of (1) a January 6, 13 2014, decision of the BIA, affirming a September 19, 2012, 14 decision of an Immigration Judge (“IJ”) denying Xia’s first 15 motion to reopen, In re Xiao Yan Xia, No. A075 981 406 (B.I.A. 16 Jan. 6, 2014), aff’g No. A075 981 406 (Immig. Ct. N.Y. City Sept. 17 19, 2012), and (2) a December 11, 2015, decision of the BIA 18 denying her second motion to reopen, In re Xiao Yan Xia, No. 19 A075 981 406 (B.I.A. Dec. 11, 2015). We assume the parties’ 20 familiarity with the underlying facts and procedural history 21 in this case. 22 We have reviewed both the IJ’s and the BIA’s decisions “for 23 the sake of completeness.” Wangchuck v. Dep’t of Homeland 24
Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 253 standards of review are well established. See Jian Hui Shao 1 v. Mukasey , 546 F.3d 138, 168-69 (2d Cir. 2008). 2 It is undisputed that Xia’s motions to reopen were untimely 3 filed more than 13 years after the IJ’s removal order became 4 final, and that her second motion was number barred. See 5 8 U.S.C. § 1229a(c)(7)(A), (c)(7) (C)(i); 8 C.F.R. 6 §§ 1003.2(c)(2), 1003.23(b)(1). These time and number 7 limitations do not apply, however, if the motion is to reopen 8 in order to apply for asylum and “is based on changed country 9 conditions arising in the country of nationality or the country 10 to which removal has been ordered, if such evidence is material 11 and was not available and would not have been discovered or 12 presented at the previous proceeding.” 8 U.S.C. 13 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. 14 §§ 1003.2(c)(3), 1003.23(b)(4)(i). “In determining whether 15 evidence accompanying a motion to reopen demonstrates a 16 material change in country conditions that would justify 17 reopening, [the BIA] compare[s] the evidence of country 18 conditions submitted with the motion to those that existed at 19 the time of the merits hearing below.” In re S-Y-G- , 24 I. & 20 N. Dec. 247, 253 (B.I.A. 2007). The BIA did not err in finding 21 that Xia failed to demonstrate such conditions. 224 While the 2014 Annual Report of the China Aid Association 1 states that “Christians and practitioners of other faiths in 2 China experienced the harshest persecution seen in over a 3 decade,” China Aid, 2014 Annual Report Religious and Human 4 Rights Persecution in China 1 (Jan.-Dec. 2014), available at 5 http://www.chinaaid.org/2015/04/china-aid-2014-annual-repor 6 t-indicates.html , that report and the other record evidence do 7 not demonstrate a material change in conditions since the time 8 of Xia’s hearing in 1998. See In re S-Y-G-, 24 I. & N. Dec. 9
at 253. Rather, the country conditions evidence from 1998 and 10 that from the time of Xia’s motions describe the following 11 similar conditions related to the government’s treatment of 12 unregistered religious groups: demolition of unregistered 13 churches; removal of crosses from buildings; detention of 14 unregistered church leaders; criminal or administrative 15 penalties for unregistered church practitioners; and 16 variations in government interference depending on location. 17
See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also In re S-Y-G- , 24 18 I. & N. Dec. at 257 (“Change that is incremental or incidental 19 does not meet the regulatory requirements for late motions of 20 this type.”). 215 Xia argues that the BIA erred in declining to credit two 1 letters from her family friends, both of whom claimed to have 2 been persecuted for worshiping in an unregistered church in 3 China and asserted that Xia would face a similar fate should 4 she return. However, the BIA did not abuse its discretion in 5 declining to credit the letters beca use they were unsworn and 6 created for the purpose of supporting Xia’s case. See Y.C. v. 7 Holder , 741 F.3d 324, 334 (2d Cir. 2013) (deferring to agency’s 8 decision to afford little weight to husband’s letter because 9 letter was unsworn and submitted by an interested witness); see 10 also In re H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209, 214-15 (B.I.A. 11 2010) (affording minimal weight to documents obtained solely 12 for removal proceedings by witnesses not subject to 13 cross-examination), rev’d on other grounds by Hui Lin Huang v. 14 Holder , 677 F.3d 130 (2d Cir. 2012). 15 Accordingly, because Xia failed to demonstrate material 16 changed country conditions in China, the agency did not abuse 17 its discretion in denying her motions to reopen as untimely. 18
See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. §§ 1003.2(c), 19 1003.23(b). 20 For the foregoing reasons, these petitions for review are 21 DENIED. As we have completed our rev iew, any stay of removal 226 that the Court previously granted in these petitions is VACATED, 1 and any pending motion for a stay of removal in these petitions 2 is DISMISSED as moot. Any pending request for oral argument 3 in these petition is DENIED in accordance with Federal Rule of 4 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 5 34.1(b). 6
FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8