17-976 

Chen v. Whitaker 

BIA 

A073 536 028 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 7th day of January, two thousand nineteen. 

PRESENT: 

ROBERT A. KATZMANN, 

 Chief Judge, 

ROBERT D. SACK, 

RICHARD C. WESLEY,

Circuit Judges. 

_____________________________________ 

XIN CHEN, 

 Petitioner, 

v. 17-976 

 NAC 

MATTHEW G. WHITAKER, ACTING 

UNITED STATES ATTORNEY GENERAL, 

 Respondent. 

_____________________________________ 

FOR PETITIONER: Theodore N. Cox, New York, NY. 

 

FOR RESPONDENT: Chad A. Readler, Acting Assistant 

Attorney General; Keith I. 

McManus, Assistant Director; John 

B. Holt, Trial Attorney, Office of 

Immigration Litigation, United 

States Department of Justice, 

Washington, DC. 
2

UPON DUE CONSIDERATION of this petition for review of a 

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

ORDERED, ADJUDGED, AND DECREED that the petition for review 

is DENIED. 

 Petitioner Xin Chen, a native and citizen of the People’s 

Republic of China, seeks review of a March 31, 2017, decision 

of the BIA denying his motion to reopen. In re Xin Chen, No. 

A073 536 028 (B.I.A. Mar. 31, 2017). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. We have reviewed the BIA’s denial of the motion 

to reopen for abuse of discretion and considered whether its 

conclusion regarding changed country conditions is supported 

by substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d 

138, 168-69 (2d Cir. 2008). 

 In his motion to reopen, Chen asserted that he had 

converted to Christianity in the United States and that 

worsened conditions for Christians in China both excused the 

untimely filing of a second motion to reopen and demonstrated 

his prima facie eligibility for asylum, withholding of 

removal, and relief under the Convention Against Torture. It 

is undisputed that Chen’s 2016 motion to reopen was untimely 

and number barred as it was his second motion and was filed 
3

almost 20 years after his deportation order. See 8 U.S.C. 

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

 However, the time and number limitations for filing a 

motion to reopen do not apply if reopening is sought to 

apply for asylum and the motion “is 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). “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.” In re S-Y-G-, 24 

I. & N. Dec. 247, 253 (B.I.A. 2007). 

 The agency committed two legal errors in its decision, 

each of which is an abuse of discretion. First, the agency 

found that Chen failed to demonstrate a material change in 

country conditions because of record evidence demonstrating 

that the Chinese government has viewed unfavorably and 
4

mistreated unregistered Christian groups since before 

Chen’s deportation proceedings. However, the agency ignored 

record evidence that persecution of Christians has become 

more common and intense, which “clearly” bears on the 

changed conditions inquiry. See Paul v. Gonzales, 444 F.3d 

148, 157 (2d Cir. 2006). 

 Second, the agency found that the record evidence 

indicated that persecution varies significantly from region 

to region, implying that Chen had failed to meet his burden 

to establish a change in his home area, the Fujian 

Province. See Jian Hui Shao v. Mukasey, 546 F.3d 138, at 

142, 149 (2d Cir. 2008) (upholding BIA’s conclusion that 

where treatment varies by region, petitioner must establish 

a change in his home area). However, the agency did not 

consider any record evidence bearing on the conditions in 

Fujian Province. This was an error. 

 Nevertheless, we deny the petition because “we can 

state with confidence that the [BIA] would adhere to [its] 

decision were the petition remanded.” Xiao Ji Chen v. U.S. 

Dep’t of Justice, 434 F.3d 144, 158 (2d Cir. 2006); see 

also Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 

(2d Cir. 2005) (“[W]e are not required to remand where 
5

there is no realistic possibility that, absent the errors, 

the IJ or BIA would have reached a different conclusion.”). 

While we do not think the BIA would adhere to its decision 

concerning changed conditions for Christians in China 

generally, there is no realistic possibility that the BIA 

would have reached a different conclusion concerning 

conditions in Fujian Province. Chen’s evidence does not 

demonstrate increased persecution of Christian groups in 

that province. 

 For the foregoing reasons, the petition for review is 

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk