HUI LI, aka, Cheng Yi Yong, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 458 F. App'x 74

SUMMARY ORDER Hui Li, a native and citizen of the People’s Republic of China, seeks review of an April 22, 2011, decision of the BIA denying his motion to reopen. In re Hui Li, No. [ AXXX XXX XXX ] (B.I.A. Apr. 22, 2011). We assume the parties’ familiarity with the underlying facts and procedural history of this case. We review the BIA’s denial of Li’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

When, as here, the BIA considers relevant evidence of country conditions in evaluating the motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008). Normally, an alien may file only one motion to reopen and must do so within 90 days of the agency’s final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),(C); 8 C.F.R. § 1003.2(c)(2).

However, there is no time or numerical limitation for filing a motion to reopen if it 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(e)(3) (ii).

Here, the BIA did not abuse its discretion in finding that Li’s newly commenced practice of Christianity constituted a change in his personal circumstances, rather than a change in country conditions sufficient to excuse the applicable time and numerical limitations. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005) (explaining that a change in “personal circumstances in the United States ” did not constitute a change in country conditions excusing the filing deadline for motions to reopen).

Moreover, the BIA did not abuse its discretion in finding that Li did not establish a material change in conditions in China because he failed to submit any evidence in support of his motion describing China’s treatment of Christians and underground church members at the time of his 2002 deportation proceedings. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (In evaluating evidence of changed country conditions, 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”).

Indeed, while Lin submitted numerous governmental and organizational reports and newspaper articles from 2009 describing China’s human rights practices and its treatment of Christians and house church members, he did not submit any reports or articles that described the Chinese government’s treatment of those groups prior to 2009. Although Li urges this Court to compare the 2009 U.S.

Department of State Country Report for China (“2009 Country Report”) that he submitted to the BIA with earlier State Department reports, and argues that the 2009 Country Report “reflect[s] a worsening of repression” as compared to previous years, we decline to consider these earlier reports because they were not part of the administrative record. See 8 U.S.C. § 1252(b)(4)(A). Accordingly, the BIA did not abuse its discretion in finding that Li failed to demonstrate any material change in country conditions excusing the untimely and number-barred filing of his 2010 motion to reopen.

See Matter of S-Y-G-, 24 I. & N. Dec. at 253. Furthermore, the BIA reasonably concluded that the country conditions evidence Li submitted did not demonstrate a material change in country conditions because the 2009 Country Report and the 2009 Congressional-Executive Commission on China Annual Report (“Congressional-Executive Report”) indicated that the Chinese government’s oppression of unregistered Christians reflected a continuation of its decades-long effort to suppress unauthorized religious groups, rather than an intensification of its harassment and persecution of unregistered Christians.

See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, given the BIA’s explicit references to the documentation Li submitted with his motion to reopen, we cannot conclude that the BIA ignored any of Li’s evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (holding that the BIA is not required to “expressly parse or refute on the record” each individual argument or piece of evidence offered by the petitioner as long as it “has given reasoned consideration to the petition, and made adequate findings”) (citation omitted).

Because the BIA’s finding that Li failed to demonstrate a change in conditions in China is dispositive of his motion to reopen, we do not reach the issue of whether Li established his prima facie eligibility for relief. Finally, we lack jurisdiction to review the BIA’s decision not to reopen Li’s proceedings sua sponte, as that decision is “entirely discretionary.” See Cyrus v. Keisler, 505 F.3d 197, 202 (2d Cir.2007) (finding that the BIA’s decision not to reopen sua sponte under 8 C.F.R. § 1003.2(

a) is a discretionary decision that is not subject to judicial review). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.