07-3715-ag
Sun v. Holder
BIA
A073 583 412
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 16 th day of February, two thousand ten.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
_________________________________________
MEICHANG SUN,
Petitioner,
v. 07-3715-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Matthew L. Guadagno; Jules E. Coven;
Kerry W. Bretz, Bretz & Coven, LLP,
New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Alberto R. Gonzales as respondent in this case.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General; Linda S. Wernery,
Assistant Director; William C.
Minick, Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Meichang Sun, a native and citizen of the
People’s Republic of China, seeks review of a July 31, 2007
order of the BIA denying her motion to reopen. In re
Meichang Sun, No. A073 583 412 (B.I.A. July 31, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
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) (per curiam). There is no dispute that Sun’s
April 2007 motion to reopen was untimely where the BIA
issued a final order of removal in June 2002. See 8 C.F.R.
§ 1003.2(c)(2). However, there is no time limit for filing a
motion to reopen if it is “based on changed circumstances
arising in the country of nationality or in the country to
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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 hearing.” 8 C.F.R.
§ 1003.2(c)(3)(ii). In this case, the BIA reasonably found
that Sun’s motion to reopen did not qualify for such an
exception.
It is well-settled that the birth of U.S. citizen
children is not evidence of changed conditions in China.
See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,
130-31 (2d Cir. 2005)(per curium) (finding that the birth of
U.S. citizen children constitutes a change in personal
circumstances, not a change in country conditions, and
therefore does not establish an exception to the filing
deadline for motions to reopen). Moreover, because the BIA
reasonably found speculative Sun’s claim that she violated
the family planning policy by having one child, her evidence
suggesting that violators of the family planning policy are
subjected to economic persecution was not material to her
case. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
Cir. 2005) (holding that “[i]n the absence of solid support
in the record for [an applicant’s] assertion that [s]he will
be [persecuted], h[er] fear is speculative at best”).
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Accordingly, the BIA did not abuse its discretion in finding
that Sun failed to demonstrate changed country conditions
excusing the untimeliness of her motion to reopen. See
8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA,
437 F.3d 270, 273-74 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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