09-1354-ag
Chen v. Holder
BIA
IJ, Weisel
A073 568 341
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 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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 30 th day of April, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 MIN ZHANG CHEN,
14 Petitioner,
15
16 v. 09-1354-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Scott E. Bratton, Cleveland, Ohio.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; Jennifer
27 Paisner Williams, Senior Litigation
28 Counsel; Ali Manuchehry, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Min Zhang Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a March 5, 2009, order of
7 the BIA, affirming the November 19, 2008, decision of
8 Immigration Judge (“IJ”) Robert D. Weisel, which denied his
9 motion to reopen. In re Min Zhang Chen, No. A073 568 341
10 (B.I.A. Mar. 5, 2009), aff’g No. A073 568 341 (Immig. Ct.
11 N.Y. City Nov. 19, 2008). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 We review the agency’s denial of a motion to reopen for
15 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
16 Cir. 2005) (per curiam). Here, the agency did not abuse its
17 discretion in denying Chen’s motion to reopen as untimely
18 because he filed it over ten years after his order of
19 removal became final. See 8 C.F.R. § 1003.2(c)(2).
20 To the extent Chen argues that country conditions have
21 changed in China with respect to the treatment of Falun Gong
22 practitioners, the agency did not abuse its discretion in
2
1 declining to reopen on that basis. Indeed, Chen allegedly
2 began practicing Falun Gong almost ten years after the
3 practice was outlawed. Thus, the agency reasonably viewed
4 the motion as based on a change in personal circumstances,
5 which fails to except his motion to reopen from the
6 applicable time limitations. See 8 U.S.C.
7 § 1229a(c)(7)(C)(ii). The birth of Chen’s second child in
8 the United States is similarly a change in personal
9 circumstances. See Wei Guang Wang v. BIA, 437 F.3d 270, 274
10 (2d Cir. 2006); Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d
11 Cir. 2008) (holding that the existing legal system does not
12 permit aliens who have been ordered removed “to disregard
13 [those] orders and remain in the United States long enough
14 to change their personal circumstances (e.g., by having
15 children or practicing a persecuted religion) and initiate
16 new proceedings via a new asylum application.”). Contrary
17 to Chen’s argument, a reasonable factfinder would not be
18 compelled to conclude that the agency failed to consider the
19 evidence he submitted regarding that claim. Jian Hui Shao
20 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen
21 v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.
22 2006). Accordingly, because Chen failed to establish
3
1 changed country conditions, the agency did not abuse its
2 discretion in denying his untimely motion to reopen. See
3 8 U.S.C. § 1229(a)(c)(7)(C)(ii); Kaur, 413 F.3d at 233.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in these petitions is DENIED in accordance
10 with Federal Rule of Appellate Procedure 34(a)(2), and
11 Second Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
4