Untimely Motions to Reopen Require Region-Specific, Material Deterioration Showing Systemic “Pattern or Practice” Persecution

Introduction

Chen v. Bondi (2d Cir. Mar. 9, 2026) concerns a Chinese national, Yang Chun Chen, who sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on fear of persecution as a Catholic who practices in underground churches in China. After an Immigration Judge (IJ) denied relief and the Board of Immigration Appeals (BIA) affirmed, Chen filed a late motion to reopen—outside the statutory 90-day deadline—arguing that changed country conditions in China (particularly Fujian Province, his home region) justified reopening.

The key issues on review were: (1) whether Chen preserved a challenge to the BIA’s merits affirmance, and (2) whether the BIA abused its discretion in denying reopening on the ground that Chen failed to show a material change in country conditions sufficient to excuse the untimeliness, especially where his theory depended on proving a pattern or practice of persecution in his home province.

Summary of the Opinion

The Second Circuit denied both petitions for review. It held that Chen abandoned review of the BIA’s April 2023 merits decision because his briefing challenged only the denial of reopening. On the reopening question, the court concluded that substantial evidence supported the BIA’s finding that the evidence did not show a material worsening of conditions for underground Catholics in Fujian Province between the 2019 merits hearing and the 2023 motion to reopen. Because Chen’s motion was untimely and he failed to satisfy the changed-conditions exception, the BIA did not abuse its discretion.

Analysis

Precedents Cited

  • Debique v. Garland, 58 F.4th 676 (2d Cir. 2023)
    The court relied on Debique for the rule that issues not adequately argued are deemed abandoned. Applying that principle, the panel limited review to reopening because Chen’s brief did not contest the earlier BIA affirmance of the IJ’s denial of asylum/withholding/CAT.
  • Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008)
    This decision supplied two critical standards: (1) motions to reopen are reviewed for abuse of discretion, while findings on changed country conditions are reviewed for substantial evidence; and (2) where the relevant persecution varies by locality, the agency may require proof targeted to the applicant’s home region. The panel used Jian Hui Shao to validate the BIA’s focus on Fujian-specific evidence.
  • Tanusantoso v. Barr, 962 F.3d 694 (2d Cir. 2020) (quoting In re S-Y-G-, 24 I. & N. Dec. 247 (B.I.A. 2007))
    The court reiterated that changed-conditions analysis requires a comparison between conditions shown in the motion and conditions at the time of the merits hearing. This comparison framework anchored the panel’s conclusion that the 2022 State Department report was not materially different from the earlier record.
  • In re S-Y-G-, 24 I. & N. Dec. 247 (B.I.A. 2007)
    The BIA’s rule that “incremental or incidental” changes do not satisfy the changed-conditions exception was central. Even if the new report contained additional examples of harassment or abuses, the panel agreed the agency could view these as continuations of preexisting conditions rather than a material escalation.
  • Y.C. v. Holder, 741 F.3d 324 (2d Cir. 2013) and In re A-M-, 23 I. & N. Dec. 737 (B.I.A. 2005)
    These authorities framed the “pattern or practice” pathway to a well-founded fear: persecution must be “systemic or pervasive” against similarly situated persons. The panel applied this standard to conclude that evidence of some abuses in Fujian did not compel a finding of systemic persecution.
  • Jian Liang v. Garland, 10 F.4th 106 (2d Cir. 2021)
    The panel cited Jian Liang for the proposition that where treatment of Christians in China varies by locality, the applicant must provide evidence tied to the relevant province. Chen’s attempt to show a pattern or practice thus required Fujian-specific proof of systemic persecution, not generalized evidence about China.
  • INS v. Abudu, 485 U.S. 94 (1988)
    The court invoked Abudu for the baseline principle that the movant bears the burden to introduce evidence supporting reopening, reinforcing the deferential posture toward the BIA’s denial where the evidentiary showing is insufficient.

Legal Reasoning

  1. Scope of review narrowed by abandonment.
    Because Chen briefed only the reopening denial, the court treated any challenge to the April 2023 BIA affirmance as abandoned under Debique v. Garland. This procedural move mattered: it prevented the petition from becoming a backdoor attack on the original asylum denial and confined the case to the discrete statutory reopening framework.
  2. Timeliness rule and the changed-conditions exception.
    The court applied the 90-day reopening deadline in 8 U.S.C. § 1229a(c)(7)(C)(i) and 8 C.F.R. § 1003.2(c)(2). It then assessed whether Chen fit the exception for asylum-related motions based on changed conditions under 8 U.S.C. § 1229a(c)(7)(C)(ii) and 8 C.F.R. § 1003.2(c)(3)(ii), which requires that the evidence be material and previously unavailable.
  3. Required comparison: “then vs. now.”
    Following Tanusantoso v. Barr and In re S-Y-G-, the BIA had to compare the motion evidence with what existed at the 2019 merits hearing. The panel found the BIA did so, contrasting the earlier record (2017 State Department report, 2019 USCIRF report, and Fujian church-demolition photos) with the new submission (a 2022 State Department report).
  4. Pattern-or-practice claim requires “systemic or pervasive” persecution, potentially province-specific.
    Because Chen did not claim past persecution, he bore the burden under 8 C.F.R. § 1208.13(a), (b)(2) to show a well-founded fear. He elected a pattern or practice theory under 8 C.F.R. § 1208.13(b)(2)(iii), requiring proof that similarly situated persons (underground Catholics) face systemic persecution. Under Jian Hui Shao v. Mukasey and Jian Liang v. Garland, where enforcement varies by locality, the agency may insist on proof in the applicant’s home region—here, Fujian.
  5. Substantial-evidence support for “no material worsening,” and no abuse of discretion.
    The Second Circuit emphasized that the earlier record already reflected significant repression: detention and beatings of Christian house church members in some areas, detention of a Catholic bishop in Fujian, destruction of churches, and heightened repression in late 2018. The 2022 report described continuing control, harassment, imprisonment, and property destruction—facts the BIA could reasonably interpret as continuation rather than material escalation. Under 8 U.S.C. § 1252(b)(4)(B) and In re S-Y-G-, the court held that the record did not compel a contrary conclusion.
  6. Addressing the alleged inconsistency between BIA decisions.
    Chen argued the BIA’s reopening decision conflicted with the original merits decision because the BIA had supposedly found no persecution evidence in Fujian. The panel rejected this as a mischaracterization: the earlier decision’s point was not “none,” but “not sufficiently systemic and pervasive” to establish a pattern or practice. That framing mattered because it aligned both decisions around the same dispositive concept—insufficient pervasiveness—rather than contradictory factual premises.

Impact

Although issued as a nonprecedential summary order, Chen v. Bondi is instructive in three practical ways for future litigation in the Second Circuit:

  • Reopening is not merits reconsideration. Petitioners must distinctly satisfy the statutory reopening gatekeeping requirements, especially when the motion is untimely.
  • “Changed conditions” must be materially worse, not merely ongoing. Updated country reports describing continued repression may be deemed incremental where earlier records already documented similar forms of abuse.
  • Locality matters for pattern-or-practice claims. Where the agency and circuit recognize regional variation in treatment of religious groups, province-specific evidence of systemic persecution is often decisive.

Complex Concepts Simplified

Motion to reopen
A request to restart immigration proceedings to consider new evidence. It is heavily regulated, time-limited, and reviewed deferentially.
90-day deadline and the changed-country-conditions exception
Normally, a motion to reopen must be filed within 90 days of the final BIA decision. The deadline can be excused for asylum-related reopening if conditions in the home country have changed materially and the new evidence was previously unavailable.
Material change vs. incremental change
A “material” change is a meaningful deterioration that alters the risk analysis; “incremental or incidental” change is merely more of the same conditions already considered, even if described in newer documents.
Pattern or practice of persecution
A way to prove future fear without showing the government will target the applicant personally. The applicant must show that persecution of the group is widespread—“systemic or pervasive”—and that the applicant is similarly situated.
Substantial evidence / compelled-to-conclude standard
The court does not decide the facts anew. It upholds the agency’s factual determinations unless the evidence would force any reasonable adjudicator to reach the opposite conclusion.
Abuse of discretion
A deferential review standard for reopening denials; the court generally upholds the BIA unless it acted arbitrarily, irrationally, or contrary to law.
Abandonment (waiver on appeal)
If a petitioner does not meaningfully argue an issue in the opening brief, the court treats it as forfeited and will not review it.

Conclusion

Chen v. Bondi reinforces that an untimely motion to reopen premised on changed country conditions must do more than present a newer country report describing continued repression. When an applicant pursues a pattern-or-practice theory and conditions vary by locality, the agency may require evidence showing a material, region-specific deterioration amounting to systemic persecution in the applicant’s home area. Absent such a showing, the Second Circuit will generally defer to the BIA’s denial of reopening under the substantial-evidence and abuse-of-discretion standards.