09-1020-ag
Chen v. Holder
BIA
A078 412 192
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 15 th day of December, two thousand nine.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 LI YING CHEN,
14 Petitioner,
15
16 v. 09-1020-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Cora J. Chang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor,
1 Assistant Director; Joan H. Hogan,
2 Attorney, Office of Immigration
3 Litigation, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED, that the petition for review
9 is DENIED.
10 Petitioner Li Ying Chen, a native and citizen of the
11 People’s Republic of China, seeks review of a February 20,
12 2009 order of the BIA denying her motion to reopen. In re
13 Li Ying Chen, No. A078 412 192 (B.I.A. Feb. 20, 2009). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 We review the BIA’s denial of a motion to reopen for
17 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
18 Cir. 2005) (per curiam). There is no dispute that Chen’s
19 second motion to reopen filed in October 2008 was untimely
20 and number-barred when the BIA issued a final order of
21 removal in February 2003. See 8 C.F.R. § 1003.2(c)(2).
22 However, there are no time and numerical limitations for
23 filing a motion to reopen if it is “based on changed
24 circumstances arising in the country of nationality or in
2
1 the country to which deportation has been ordered, if such
2 evidence is material and was not available and could not
3 have been discovered or presented at the previous hearing.”
4 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably found that
5 Chen did not qualify for such an exception.
6 A. Family Planning Claim
7 Chen argues that the BIA erred in failing to adequately
8 consider as evidence of changed country conditions the
9 Notice from family planning officials in the record,
10 entitled “Documentation of Tantou Town Birth Control Office
11 of Changle City” (“Notice”). The BIA did not err in
12 summarily concluding that the unauthenticated and unsigned
13 Notice that Chen submitted did not demonstrate material
14 changed circumstances in China. See Wei Guang Wang v. BIA,
15 437 F.3d 270, 275 (2d Cir. 2006).
16 Because the BIA did not abuse its discretion in
17 summarily considering and rejecting the Notice that Chen
18 submitted as evidence of changed circumstances in China, see
19 id., it reasonably denied her motion to reopen as untimely
20 and number-barred, see 8 C.F.R. § 1003.2(c). Accordingly,
21 we need not consider Chen’s argument that she demonstrated
22 her prima facie eligibility for relief based on the family
23 planning policy. See 8 C.F.R. § 1003.2(c).
3
1
2 B. Christianity Claim
3 The BIA also did not err in declining to reopen Chen’s
4 proceedings based on her new practice of Christianity
5 because she failed to submit an application for asylum
6 regarding such a claim for relief. See 8 C.F.R. §
7 1003.2(c)(1) (“A motion to reopen proceedings for the
8 purpose of submitting an application for relief must be
9 accompanied by the appropriate application for relief.”).
10 In addition, the BIA did not err in finding that Chen’s new
11 practice of Christianity constituted a change in her
12 personal circumstances and not a change in country
13 conditions excusing the time and numerical limitations for
14 filing her motion to reopen. See Li Yong Zheng v. U.S.
15 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005). The
16 BIA also reasonably found that Chen failed to demonstrate
17 material changed country conditions related to her
18 Christianity claim because she did not submit in support of
19 her motion any country conditions evidence discussing the
20 treatment of Christians in China. See 8 U.S.C.
21 § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Accordingly, the
22 BIA did not abuse its discretion in denying her untimely and
23 number-barred motion to reopen to apply for relief based on
4
1 her religion. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei
2 Guang Wang, 437 F.3d at 273-74.
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(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14 By:___________________________
5