14-3-ag
Chen v. Lynch
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 18th day of November, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL,
8 GERARD E. LYNCH
9 Circuit Judges.
10
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12 LI CHEN,
13 Petitioner,
14
15 -v.- 14-3-ag
16
17 LORETTA E. LYNCH, United States
18 Attorney General,*
19 Respondent.
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21
22 FOR PETITIONER: LEE RATNER, Law Offices of
23 Michael Brown, New York, NY.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1
1
2 FOR RESPONDENT: SABATINO F. LEO, Office of
3 Immigration Litigation, U.S.
4 Department of Justice,
5 Washington, D.C.
6
7 Petition for review of a decision of the Board of
8 Immigration Appeals.
9
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the petition is DENIED.
12
13 Petitioner Li Chen, a native and citizen of the
14 People’s Republic of China, petitions for review of a
15 December 16, 2013 decision of the Board of Immigration
16 Appeals (“BIA”) affirming a March 28, 2012 decision of an
17 Immigration Judge (“IJ”) denying Chen’s motion to reopen
18 immigration proceedings. We assume the parties’ familiarity
19 with the underlying facts, the procedural history, and the
20 issues presented for review.
21
22 A motion to reopen must be filed within 90 days of the
23 date an IJ’s final administrative order is rendered. 8
24 C.F.R. § 1003.23(b)(1); see also 8 C.F.R. § 1003.2(c)(2).
25 Untimeliness may be excused if the motion is “based on
26 changed country conditions arising in the country of
27 nationality or the country to which removal has been
28 ordered.” 8 C.F.R. § 1003.23(b)(4)(I); see also 8 C.F.R.
29 § 1003.2(c)(3)(ii). This requires a showing that the
30 conditions in a country have changed since the removal
31 order. Yuen Jin v. Mukasey, 538 F.3d 143, 151 (2d Cir.
32 2008). A change in personal circumstances, based on
33 petitioner’s own choices, does not fall within this
34 exception. Wei Guang Wang v. BIA, 437 F.3d 270, 273–74 (2d
35 Cir. 2006); see also Yuen Jin v. Mukasey, 538 F.3d 143, 155
36 (2d Cir. 2008) (“[I]t would be ‘ironic’ to allow aliens to
37 reopen their cases following a final order of deportation
38 simply because they were able to change their own personal
39 circumstances . . . while remaining in the United States
40 illegally.”)
41
42 On June 29, 1995, an IJ granted Chen’s request for
43 voluntary departure, dismissed Chen’s application for asylum
44 with prejudice, and ordered that failure to voluntarily
45 depart would result in removal. Chen nevertheless remained
46 in the United States and in 2010 converted to Christianity.
47 On February 7, 2012, Chen filed an untimely motion to reopen
2
1 her immigration proceedings based on “changed circumstances”
2 in China regarding its treatment of Christians. The IJ
3 concluded that she did not satisfy the “changed
4 circumstances” exception because the only change she alleged
5 was a personal one and she did not establish a material
6 change in the conditions Christians face in China. The BIA
7 affirmed on the same basis. We review BIA denials of a
8 motion to reopen for abuse of discretion. INS v. Doherty,
9 502 U.S. 314, 323 (1992).
10
11 The BIA did not abuse its discretion in concluding that
12 Chen did not fall within the “changed circumstances”
13 exception to the filing deadline. Chen did not establish
14 that country conditions in China regarding the treatment of
15 Christians had changed since her initial asylum motion was
16 denied in 1995. Moreover, Chen’s religious conversion after
17 she failed to deport voluntarily was a change in personal
18 circumstances, not a change in country conditions “arising
19 in” China. Wei Guang Wang, 437 F.3d at 273. As we have
20 repeatedly noted, a “self-induced change in personal
21 circumstances cannot suffice” to fall within the “changed
22 circumstances” exception. Id. at 274.**
23
24 Accordingly, and finding no merit in Chen’s other
25 arguments, the petition for review is DENIED.
26
27 FOR THE COURT:
28 CATHERINE O’HAGAN WOLFE, CLERK
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**
Chen relies on a Seventh Circuit case, Joseph v.
Holder, 579 F.3d 827 (7th Cir. 2009), which is neither the
law of this Circuit, nor is it applicable to Chen’s
circumstances, cf. Cheng Chen v. Gonzales, 498 F.3d 758 (7th
Cir. 2007).
3