LIU v. BARR (2020)

SUMMARY ORDER

Petitioner Yan Rong Liu, a native and citizen of the People's Republic of China, seeks review of a May 18, 2017, decision of the BIA affirming a March 22, 2016, decision of an Immigration Judge (“IJ”) denying Liu's motion to reopen her removal proceedings. In re Yan Rong Liu, No. A XXX XX5 166 (B.I.A. May 18, 2017), aff'g No. A XXX XX5 166 (Immig. Ct. N.Y. City Mar. 22, 2016). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

We review the agency's denial of Liu's motion to reopen for abuse of discretion, and review the agency's factual findings regarding country conditions under the substantial evidence standard. Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).

It is undisputed that Liu's 2015 motion to reopen was untimely because her removal order became final in 2001. See 8 U.S.C. § 1229a(c)(7)(C)(i)(setting 90-day filing period for motions to reopen); 8 C.F.R. § 1003.23(b)(1)(same). Although this time limitation does not apply if the motion to reopen is “based on changed country conditions” since the time of the original hearing, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.23(b)(4)(i), as discussed below, the agency's conclusion that Liu failed to establish such a change is supported by substantial evidence, see Jian Hui Shao, 546 F.3d at 169.

The agency reasonably concluded that Liu did not establish a material change in country conditions because her evidence revealed that the Chinese government has continuously repressed Christians, especially members of unregistered churches, since before 2001, with varying degrees of restriction. In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 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․”). Liu's argument that the evidence “clearly demonstrated” a change in conditions is without merit. The agency cited extensively to Liu's submissions, which demonstrated that conditions for Christians in China were generally poor, and while conditions varied over the years, there was not a marked deterioration. See id. at 257 (“Change that is incremental or incidental does not meet the regulatory requirements for late motions of this type.”).

Moreover, Liu's evidence was insufficient to establish changed conditions since 2001 because it largely documented country conditions from 2013 to 2015. Even so, the agency properly took administrative notice of State Department reports to conclude that conditions for Christians in China have not worsened. See Yang v. McElroy, 277 F.3d 158, 163 n.4. (2d Cir. 2002)(per curiam)(“It is well-settled that the [agency] has the authority to take administrative notice of current events bearing on an applicant's well-founded fear of persecution”); Burger v. Gonzales, 498 F.3d 131, 135 (2d Cir. 2007) (explaining that due process concerns arise “where administratively noticed facts are the sole basis” for the denial of relief).

Given the absence of evidence demonstrating changed conditions, the agency did not abuse its discretion in denying Liu's motion to reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.23(b)(1), (4)(i). Because the agency's timeliness ruling is dispositive, we do not reach the agency's alternative holding regarding Liu's prima facie eligibility for asylum. See 8 U.S.C. § 1229a(c)(7)(C)(i); INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976)(per curiam).

For the foregoing reasons, the petition for review is DENIED. All motions and requests for oral argument are in this petition is DENIED and all stays are VACATED.