Yan Yue Chen v. Holder

10-4039-ag Chen v. Holder BIA A077 997 454 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 30th day of November, two thousand eleven. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 REENA RAGGI, 9 RICHARD C. WESLEY, 10 Circuit Judges. 11 _________________________________________ 12 13 YAN YUE CHEN, A.K.A. WAI SHAN CHAN, 14 Petitioner, 15 16 v. 10-4039-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _________________________________________ 22 23 FOR PETITIONER: Lee Ratner, of-counsel of Michael 24 Brown, Law Offices of Michael Brown, 25 New York, New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Cindy S. Ferrier, Senior 29 Litigation Counsel; Michele Y. F. 30 Sarko, Attorney, Office of 31 Immigration Litigation, United 32 States Department of Justice, 33 Washington, 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 Yan Yue Chen, a native and citizen of the 6 People’s Republic of China, seeks review of the September 7 27, 2010, decision of the BIA denying her motion to reopen. 8 In re Yan Yue Chen, No. A077 997 454 (B.I.A. Sept. 27, 9 2010). We assume the parties’ familiarity with the 10 underlying facts and procedural history of the 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). A motion to reopen generally must 14 be filed no later than 90 days after the date on which the 15 final administrative decision was rendered in the 16 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 2010 motion was untimely, as the final 19 administrative decision was issued in 2005. The time 20 limitation does not apply to a motion to reopen if it is 21 “based on changed circumstances arising in the country of 22 nationality or in the country to which deportation has been 2 1 ordered, if such evidence is material and was not available 2 and could not have been discovered or presented at the 3 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see 4 8 U.S.C. § 1229a(c)(7)(C)(ii). However, the BIA did not 5 abuse its discretion in finding that Chen failed to 6 establish changed circumstances in China. 7 Chen contends that her Falun Gong activities in the 8 United States constitute changed circumstances. As the BIA 9 noted, Chen’s Falun Gong activities, which she commenced in 10 the United States in 2009, reflect a self-induced change in 11 personal circumstances, and therefore do not exempt her 12 motion from the time limitation. See Wei Guang Wang v. BIA, 13 437 F.3d 270, 273-74 (2d Cir. 2006). Chen also argues that 14 she demonstrated changed country conditions by submitting 15 evidence showing that conditions in China had deteriorated 16 for Falun Gong practitioners. However, the BIA’s 17 determination that the evidence failed to demonstrate 18 changed country conditions since Chen’s 2004 hearing is 19 supported by substantial evidence. See Jian Hui Shao v. 20 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Matter of S-Y-G-, 21 24 I. & N. Dec. 247, 253 (BIA 2007). The only background 22 materials Chen submitted relating to conditions in China for 3 1 Falun Gong practitioners was a 2007 United States Department 2 of State Profile of Asylum Claims and Country Conditions for 3 China, which indicated that “[t]he government has continued 4 to wage a severe campaign against Falun Gong,” and not that 5 conditions had changed. 6 Finally, Chen argues that she demonstrated changed 7 country conditions based on her submission of an affidavit 8 from her father and an unauthenticated village committee 9 notice, both of which indicated that Chinese government 10 officials had learned of her practice of Falun Gong and that 11 she would be subject to “severe punishment” for practicing 12 Falun Gong in the United States upon her return to China. 13 The BIA’s determination that this evidence was of little 14 probative value is entitled to deference, particularly in 15 light of the agency’s prior finding that Chen was not 16 credible. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148- 17 49 (2d Cir. 2007) (holding that the BIA did not abuse its 18 discretion in discrediting a purported village notice where 19 the document was not authenticated and the alien had been 20 found not credible by the IJ); see also Xiao Ji Chen v. U.S. 21 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding 22 that the weight afforded to an applicant’s evidence in 23 immigration proceedings “lies largely within the discretion” 24 of the agency (internal quotation marks omitted)). 4 1 Because the evidence Chen submitted was insufficient to 2 establish a change in country conditions, the BIA did not 3 abuse its discretion in concluding that she failed to meet 4 an exception to the filing deadline, and, accordingly, in 5 denying her motion to reopen. See 8 U.S.C. 6 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of 9 removal that the Court previously granted in this petition 10 is VACATED, and any pending motion for a stay of removal in 11 this petition is DISMISSED as moot. Any pending request for 12 oral argument in this petition is DENIED in accordance with 13 Federal Rule of Appellate Procedure 34(a)(2), and Second 14 Circuit Local Rule 34.1(b). 15 FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 5