09-2212-ag
Chen v. Holder
BIA
A 098 889 364
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 19 th day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 ______________________________________
12
13 YUE YAN CHEN,
14 Petitioner,
15 09-2212-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Joan Xie, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Civil Division; John S.
27 Hogan, Senior Litigation Counsel;
28 Kiley L. Kane, Trial Attorney,
29 Office of Immigration Litigation,
30 Civil Division, United States
31 Department of Justice, Washington,
32 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, Yue Yan Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a May 12, 2009,
7 order of the BIA denying her motion to reopen her removal
8 proceedings. In re Yue Yan Chen, No. A 098 889 364 (B.I.A.
9 May 12, 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). “A motion to reopen proceedings shall not be
14 granted unless it appears to the Board that evidence sought
15 to be offered is material and was not available and could
16 not have been discovered or presented at the former
17 hearing.” 8 C.F.R. § 1003.2(c)(1)
18 Here, the BIA did not abuse its discretion in denying
19 Chen’s motion to reopen because the evidence she sought to
20 introduce, her sister’s letter, was previously available and
21 could have been presented at her merits hearing. Id.
22 During that hearing, the IJ asked Chen why her sister failed
2
1 to submit a letter on her behalf. Chen first replied that
2 she had asked her sister to write a letter but “d[id]n’t
3 know why she didn’t write it,” then stated that her sister
4 “had a lot of work to do.” Given such testimony, the BIA
5 did not abuse its discretion in finding that Chen could have
6 submitted her sister’s letter at the time of her hearing.
7 Id.
8 For the foregoing reasons, the petition for review is
9 DENIED.
10
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14
3