08-4290-ag
Chen v. Holder
BIA
A072 483 714
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of June, two thousand ten.
PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
FONG CHEN,
Petitioner,
v. 08-4290-ag
NAC
ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL, *
Respondent.
_______________________________________
FOR PETITIONER: Henry Zhang, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
Attorney General, Barry J.
Pettinato, Assistant Director,
Carmel A. Morgan, Trial Attorney,
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioner Fong Chen, a native and citizen of the
People’s Republic of China, seeks review of an August 8,
2008 order of the BIA denying his motion to reopen his
exclusion proceedings. In re Fong Chen, No. A072 483 714
(B.I.A. Aug. 8, 2008). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien who has been ordered removed may
file one motion to reopen, but must do so within 90 days of
the relevant final administrative decision. 8 U.S.C.
§ 1229a(c)(7). The 90-day filing deadline and numerical
limitation may be excused if the alien can establish
2
“changed country conditions arising in the country of
nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8
C.F.R. § 1003.2(c)(3)(ii). Here, the BIA properly denied
Chen’s motion to reopen as untimely because he filed it
almost ten years after his June 1995 final order of removal.
See 8 C.F.R. § 1003.2(c)(2). 1
Contrary to Chen’s argument, a reasonable fact-finder
would not be compelled to conclude that the BIA ignored any
of the evidence that he submitted. 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.” Wei Guang Wang v.
BIA, 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation
marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006). Here, the
BIA considered Chen’s evidence in some detail and concluded
1
Both Chen and the Government note that the BIA
order under review failed to address our November 2007
decision, which superseded an earlier June 2007 decision.
Chen does not, however, suggest that this error
constitutes a basis for remand. In any event, remand
would be futile because, as the Government asserts, the
BIA’s decision adequately addressed the concerns raised
in the November 2007 decision. See Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 338-40 (2d Cir. 2006).
3
that it did not demonstrate a material change in country
conditions. Although Chen disputes that conclusion, his
arguments are foreclosed by this Court’s decision in Jian
Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008).
On this record, the BIA’s denial of Chen’s motion to reopen
was not an abuse of discretion. 2 See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
2
We do not consider Chen’s argument that he faces
economic persecution on account of his violation of the
Chinese family planning policy, as the argument is
unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 119-20 (2d Cir. 2007).
4