Xia v. Sessions

12-2063 Xia v. Sessions BIA A097 512 072 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 22nd day of June, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 ROSEMARY S. POOLER, 9 DENNY CHIN, 10 Circuit Judges. 11 _____________________________________ 12 13 XIU KE XIA, 14 Petitioner, 15 16 v. 12-2063 17 NAC 18 19 JEFFERSON B. SESSIONS III, 20 UNITED STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, 25 NY. 26 27 FOR RESPONDENT: Stuart F. Delery, Principal 28 Deputy Assistant Attorney General; 29 James A. Hunolt, Senior Litigation 1 Counsel; Jesse D. Lorenz, Trial 2 Attorney, Office of Immigration 3 Litigation, United States 4 Department of Justice, Washington, 5 DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Xiu Ke Xia, a native and citizen of the 12 People’s Republic of China, seeks review of an April 30, 2012, 13 decision of the BIA, denying his motion to reopen. In re Xiu 14 Ke Xia, No. A097 512 072 (B.I.A. Apr. 30, 2012). We assume 15 the parties’ familiarity with the underlying facts and 16 procedural history in this case. 17 The applicable standards of review are well established. 18 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 19 2008). In his motion to reopen, Xia asserted that he feared 20 persecution in China because he had begun practicing Falun 21 Gong in the United States. 22 It is undisputed that Xia’s 2011 motion to reopen was 23 untimely; it was filed more than three years after his removal 24 order became final in 2007. See 8 U.S.C. 2 1 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the 2 time limitation for filing a motion to reopen does not apply 3 if reopening is sought to apply for asylum and the motion “is 4 based on changed country conditions arising in the country of 5 nationality or the country to which removal has been ordered, 6 if such evidence is material and was not available and would 7 ...

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