CHEN v. BARR (2020)

SUMMARY ORDER

Petitioner Ying Chen, a native and citizen of the People's Republic of China, seeks review of a BIA decision denying her motion to reopen. In re Ying Chen, No. A094 041 964 (B.I.A. June 21, 2018). Chen asserts that conditions for Christians have worsened in China, which she argues excuses the untimeliness of her motion and demonstrates her prima facie eligibility for asylum and related relief. The applicable standards of review are well established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).

It is undisputed that Chen's motion to reopen, filed nine years after her removal order became final in 2009, was well outside the 90-day limitations period. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). A motion to reopen filed after the 90-day deadline is timely only if the movant can demonstrate prima facie entitlement to asylum, see Jian Hui Shao v. Mukasey, 546 F.3d at 168, 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 BIA] 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).

Here, the BIA found that the evidence submitted by Chen demonstrates Chinese government harassment of “some church members, mostly leaders,” and restrictions on “some religious activities” continuously since before Chen's 2007 hearing. Thus, it concluded that Chen had failed to establish a material change in country conditions. Although Chen pointed to limited evidence documenting worsening harassment between 2007 and 2010, the BIA reasonably determined that, overall, the evidence shows that the Chinese government's treatment of Christians has been consistent from 2007 onward. See id. at 257 (“Change that is incremental or incidental does not meet the regulatory requirements for late motions.”). We perceive no abuse of discretion in this conclusion. See 8 U.S.C. § 1229a(c)(7)(C).

Because the denial as untimely is dispositive, we do not reach the BIA's alternative basis for denying Chen's motion, i.e., her failure to establish prima facie eligibility for relief. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (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.” (citations omitted)).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.