1

17-1470, 18-1834 

Guan v. Barr 

BIA 

A072 765 896 

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 the Second Circuit, held at the Thurgood Marshall 

United States Courthouse, 40 Foley Square, in the City of 

New York, on the 2nd day of October, two thousand nineteen. 

PRESENT: 

JON O. NEWMAN,

DENNIS JACOBS, 

PIERRE N. LEVAL,

Circuit Judges. 

_____________________________________ 

SHI HUI GUAN, 

Petitioner, 

 17-1470 

v. 18-1834 

 NAC 

WILLIAM P. BARR, UNITED STATES 

ATTORNEY GENERAL, 

Respondent. 

_____________________________________ 

FOR PETITIONER IN 17-1470: Theodore N. Cox, New York, NY. 

FOR PETITIONER IN 18-1834: Ning Ye, Flushing, NY. 
2

FOR RESPONDENT: Joseph H. Hunt, Assistant 

Attorney General; Paul Fiorino, 

Senior Litigation Counsel; 

Katherine A. Smith, Trial 

Attorney, Office of Immigration 

Litigation, United States 

Department of Justice, Washington, 

DC. 

UPON DUE CONSIDERATION of these petitions for review of 

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

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for 

review are CONSOLIDATED and DENIED. 

 Petitioner Shi Hui Guan, a native and citizen of the 

People’s Republic of China, seeks review of the April 26, 

2017, and May 29, 2018, BIA decisions denying his motions to 

reconsider and reopen filed in his exclusion proceedings. In 

re Shi Hui Guan, No. A072 765 896 (B.I.A. Apr. 26, 2017, May 

29, 2018). The Government moves to consolidate the petitions 

over Guan’s opposition. We conclude that consolidation is 

appropriate because Guan’s petitions seek review of the BIA’s 

denial of related motions to reconsider and reopen filed in 

his exclusion proceedings. See 8 U.S.C. § 1252(b)(6). 

 We assume the parties’ familiarity with the underlying 

facts and procedural history in this case. The applicable 

standards of review are well established. See Jian Hui Shao 
3

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

Docket 17-1470 

 Guan moved to reopen his exclusion proceedings to present 

evidence of his claimed fear of persecution based on the 

births of his children in the United States purportedly in 

violation of China’s population control program. It is 

undisputed that Guan’s motion to reopen was untimely and 

number barred because it was his second motion to reopen filed 

more than 21 years after he was ordered deported. See

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

The time and numerical limitations do not apply if the motion 

is to reopen proceedings in order to apply for asylum “based 

on changed country conditions arising in the country of 

nationality or the country to which removal has been ordered, 

if such evidence is material and was not available and would 

not have been discovered or presented at the previous 

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

8 C.F.R. § 1003.2(c)(3)(ii). 

 We find no error in the BIA’s determination that Guan 

failed to demonstrate materially changed country conditions 

related to the enforcement of the family planning policy. 

See Jian Hui Shao, 546 F.3d at 159-66, 169-73 (noting that 
4

country conditions evidence from 1998 to 2007 indicated that 

enforcement of family planning policy was generally lax in 

Fujian Province with isolated reports of force being used); 

see also In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) 

(“In determining whether evidence accompanying a motion to 

reopen demonstrates a material change in country conditions 

that would justify reopening, [the agency] compare[s] the 

evidence of country conditions submitted with the motion to 

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

Further, the BIA reasonably noted that the Chinese government 

had recently relaxed enforcement of the family planning 

policy rather than tightened it as Guan had suggested. 

 Accordingly, because Guan did not establish a material 

change in conditions in China, the BIA did not abuse its 

discretion in denying his motion to reopen as untimely and 

number barred. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. 

§ 1003.2(c). We do not reach the BIA’s alternative basis for 

denying Guan’s motion—his failure to establish his prima 

facie eligibility for relief. See INS v. Bagamasbad, 429 

U.S. 24, 25 (1976) (“As a general rule courts and agencies 

are not required to make findings on issues the decision of 

which is unnecessary to the results they reach.”). 
5

Docket 18-1834 

 Guan moved to reconsider and reopen, arguing that the 

agency violated his due process rights and erred in finding 

him not credible in his underlying exclusion proceedings, and 

that he fears persecution under the family planning policy 

and as a Falun Gong practitioner. As the BIA found, insofar 

as Guan moved for reconsideration, his December 2017 motion 

was untimely because it was not filed within 30 days of any 

of the BIA’s decisions, the most recent of which had been 

issued more than 7 months earlier in April 2017, and there is 

no exception to the time limitation for motions to reconsider. 

See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). 

 As a motion to reopen, Guan’s motion was both untimely 

and number barred because it was his third motion to reopen 

filed more than 22 years after he was ordered deported. See

8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). 

Although a material change in country conditions may excuse 

the untimely or number barred filing of a motion to reopen, 

the BIA did not abuse its discretion in declining to revisit 

whether Guan had established such conditions as to his fear 

of forced sterilization based on the births of his four 

children because it had previously considered and rejected 
6

such a claim in the denial of his second motion to reopen 

(which is the motion at issue in docket number 17-1470) and 

he did not submit any new evidence related to conditions in 

China. See 8 U.S.C. § 1229a(c)(7)(B) (“The motion to reopen 

shall state the new facts that will be proven at a hearing to 

be held if the motion is granted, and shall be supported by 

affidavits or other evidentiary material.”); see also United 

States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) 

(discussing the law of the case doctrine and recognizing “that 

when a court has ruled on an issue, that decision should 

generally be adhered to by that court in subsequent stages in 

the same case, unless cogent and compelling reasons militate 

otherwise” (internal quotation marks and citation omitted)). 

 The BIA also did not err in declining to reopen due to 

Guan’s failure to demonstrate his prima facie eligibility for 

relief based on his alleged practice of Falun Gong. See INS 

v. Abudu, 485 U.S. 94, 104 (1988) (recognizing that a movant’s 

failure to establish a prima facie case for the underlying 

substantive relief sought is a proper ground for the agency 

to deny a motion to reopen). As the BIA noted, in denying 

Guan’s first motion to reopen, it had declined to credit his 

claim that he practices Falun Gong and would suffer 
7

persecution as a result in light of the underlying adverse 

credibility determination and the lack of evidence that 

Chinese government officials were aware or likely to become 

aware of his practice. We found no error in that decision. 

Shi Hui Guan v. Lynch, 648 F. App’x 129 (2d Cir. 2016). Guan 

now asserts that Chinese officials have discovered his Falun 

Gong practice and harassed his father and sister as a result, 

but aside from his own statement, he provided no evidence to 

corroborate these assertions. As we found in reviewing the 

BIA’s denial of Guan’s first motion to reopen, the BIA was 

not compelled to credit Guan’s unsupported assertions, 

particularly in light of the underlying adverse credibility 

determination, see 8 U.S.C. § 1229a(c)(7)(B) (providing that 

motion must be supported by affidavits or other evidentiary 

material); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 

146-49 (2d Cir. 2007) (relying on the doctrine falsus in uno, 

falsus in omnibus to conclude that the agency may decline to 

credit individualized documentary evidence submitted with a 

motion to reopen by an alien who was found not credible in 

the underlying proceeding). 

 Accordingly, because Guan did not submit any compelling 

evidence that Chinese officials are aware of his practice of 
8

Falun Gong or any country conditions evidence from which the 

BIA could discern whether officials are likely to discover 

his practice, the BIA did not err in finding that Guan failed 

to demonstrate his prima facie eligibility for relief based 

on his Falun Gong claim. See Abudu, 485 U.S. at 104; see 

also Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 

2008) (“[T]o establish a well-founded fear of persecution in 

the absence of any evidence of past persecution, an alien 

must make some showing that authorities in his country of 

nationality are either aware of his activities or likely to 

become aware of his activities.”). 

 We lack jurisdiction to review the BIA’s decision insofar 

as it declined to reopen Guan’s proceedings pursuant to its 

discretionary authority. See Ali v. Gonzales, 448 F.3d 515, 

518 (2d Cir. 2006). 

 For the foregoing reasons, the petitions for review are 

CONSOLIDATED and DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe 

Clerk of Court