09-2355-ag
Tian v. BIA
BIA
A073 556 441
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 27 TH day of July, two thousand ten.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
DE SHENG TIAN,
Petitioner,
v. 09-2355-ag
NAC
BOARD OF IMMIGRATION APPEALS,
Respondent.
_________________________________________
FOR PETITIONER: Thomas D. Barra, Forest Hills, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, William Peachey, Assistant
Director, Ada Bosque, Senior
Litigation Counsel, Puneet Cheema,
Law Clerk, Civil Division, Office of
Immigration Litigation, 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 De Sheng Tian, a native and citizen of the
People’s Republic of China, seeks review of the May 18,
2009, order of the BIA, which denied his motion to reopen.
In re De Sheng Tian, No. A073 556 441 (B.I.A. May 18, 2009).
We review the BIA’s denial of a motion to reopen for abuse
of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2005). In doing so, we assume the parties’ familiarity with
the underlying facts and procedural history of the case.
Because the BIA issued its final order of removal in
May 1996, it is undisputed that Tian’s November 2008 motion
to reopen was untimely. See 8 C.F.R. § 1003.2(c)(2). While
there is no time limitation for motions to reopen “based on
changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if
such evidence is material and was not available and could
not have been discovered or presented at the previous
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hearing,” 8 C.F.R. § 1003.2(c)(3)(ii), the BIA reasonably
found that Tian did not qualify for such an exception. As
the BIA noted, Tian’s recent practice of Christianity and
the birth of his U.S. citizen children constitute changed
personal circumstances, not changed country conditions. See
Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
The BIA also reasonably found that Tian failed to
demonstrate that the Chinese government’s treatment of
Christians in China had “changed for the worse in recent
years.” See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.
§ 1003.2(c)(1). Although Tian submitted a State Department
2005 Country Report to support his claim of changed country
conditions, that report stated simply that the Chinese
government’s “respect for religious freedom remained poor.”
Certified Admin. Record at 121 (emphasis added).
Finally, we identify no error in the BIA’s conclusion
that Tian failed to demonstrate his eligibility for relief
under the Convention Against Torture based on his illegal
departure from China. See Mu Xiang Lin v. U.S. Dep't of
Justice, 432 F.3d 156, 159-60 (2d Cir. 2005). The BIA’s
denial of Tian’s untimely motion to reopen was therefore not
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an abuse of discretion. 1 See 8 C.F.R. § 1003.2(c)(3)(ii);
see also Wei Guang Wang, 437 F.3d at 273-74.
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
1
We do not reach Tian’s argument that he established
changed country conditions relating to China’s treatment of
“political dissidents.” That argument was not raised before
the BIA and is therefore unexhausted. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
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