13-1405
Chen v. Holder
BIA
A098 593 676
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 14th day of March, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 QHING HUA CHEN,
14 Petitioner,
15
16 v. 13-1405
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gang Zhou, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Edward J. Duffy, Senior
27 Litigation Counsel; Charles S. Greene
28 III, Trial Attorney, Office of
29 Immigration Litigation, United States
30 Department of Justice, Washington,
31 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 Petitioner Qhing Hua Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the March 19,
7 2013, decision of the BIA denying her motion to reopen. In
8 re Qhing Hua Chen, No. A098 593 676 (B.I.A. Mar. 19, 2013).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 The BIA’s denial of Chen’s motion to reopen as untimely
12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005) (per curiam). An alien may file one
14 motion to reopen no later than 90 days after the date on
15 which the final administrative decision has been rendered in
16 the proceedings sought to be reopened. 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Chen’s 2012 motion was untimely, as the final
19 administrative decision was issued in 2008. However, the
20 time and number limitations do not apply to a motion to
21 reopen if it is “based on changed circumstances arising in
22 the country of nationality or in the country to which
23 deportation has been ordered, if such evidence is material
2
1 and was not available and could not have been discovered or
2 presented at the previous hearing.” 8 C.F.R.
3 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
4 Here, the BIA did not err in concluding that Chen did not
5 demonstrate materially changed country conditions in China
6 excusing the untimely filing of her motion to reopen.
7 As the BIA noted, Chen’s conversion to Christianity in
8 the United States in 2011, well after she was ordered
9 removed, reflects a self-induced change in personal
10 circumstances and therefore does not exempt her motion from
11 the applicable bars. See Yuen Jin v. Mukasey, 538 F.3d 143,
12 155-56 (2d Cir. 2008); Wei Guang Wang v. BIA, 437 F.3d 270,
13 273-74 (2d Cir. 2006).
14 Even if Chen’s conversion to Christianity was not a
15 self-induced change, substantial evidence supports the BIA’s
16 determination that Chen failed to demonstrate changed
17 country conditions in China. See Jian Hui Shao v. Mukasey,
18 546 F.3d 138, 169 (2d Cir. 2008) (when the BIA considers
19 relevant evidence of country conditions in evaluating a
20 motion to reopen, we review the BIA’s factual findings under
21 the substantial evidence standard). “In determining whether
22 evidence accompanying a motion to reopen demonstrates a
3
1 material change in country conditions that would justify
2 reopening, [the BIA] compare[s] the evidence of country
3 conditions submitted with the motion to those that existed
4 at the time of the merits hearing below.” Matter of S-Y-G-,
5 24 I. & N. Dec. 247, 253 (BIA 2007). As the BIA determined,
6 the country conditions evidence that Chen submitted shows,
7 for the most part, a continuation of the Chinese
8 government’s mistreatment of Christians, rather than any
9 material change. See id. at 257 (“Change that is
10 incremental or incidental does not meet the regulatory
11 requirements for late motions” to reopen). Therefore,
12 because the BIA’s inference that conditions in China have
13 not materially changed “is tethered to the evidentiary
14 record, we will accord deference to the finding.” See Siewe
15 v. Gonzales, 480 F.3d 160, 168-69 (2d Cir. 2007) (“support
16 for a contrary inference – even one more plausible or more
17 natural – does not suggest error”).
18 Moreover, as the BIA noted, the record indicates that
19 treatment of Christians varies from region to region and
20 does not show many instances of persecution in Chen’s home
21 province of Fujian. As a result, because Chen did not
22 demonstrate a change in conditions with regard to the
4
1 treatment of Christians in Fujian, the BIA did not abuse its
2 discretion in denying her untimely motion to reopen.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
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