Jin Rong Chen v. Holder

10-4727-ag Chen v. Holder BIA A099 667 841 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 15th day of February, two thousand twelve. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 JOSÉ A. CABRANES, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 JIN RONG CHEN, 14 Petitioner, 15 16 v. 10-4727-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Theodore N. Cox, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Anthony P. Nicastro, Senior 27 Litigation Counsel; Drew C. 28 Brinkman, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 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 Jin Rong Chen, a native and citizen of the 6 People’s Republic of China, seeks review of a October 29, 7 2010, decision of the BIA denying her motion to reopen her 8 removal proceedings. In re Jin Rong Chen, No. A099 667 841 9 (B.I.A. Oct. 29, 2010). We assume the parties’ familiarity 10 with the underlying facts and procedural history in this 11 case. 12 We review the BIA’s denial of a motion to reopen for 13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 14 (2d Cir. 2006). An alien seeking to reopen proceedings is 15 required to file a motion to reopen no later than 90 days 16 after the date on which the final administrative decision 17 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 18 § 1003.2(c)(2). There is no dispute that Chen’s motion to 19 reopen, filed in April 2010, was untimely because the BIA 20 issued a final order of removal in March 2009. See 8 U.S.C. 21 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 22 Chen contends, however, that the Chinese government’s 23 recent crackdown on underground churches in Fujian Province 2 1 constitutes a material change in country conditions, 2 excusing the untimeliness of her motion to reopen. See 3 8 U.S.C. § 1229a(c)(7)(C)(ii). Moreover, Chen argues that 4 the BIA abused its discretion by ignoring and 5 misinterpreting evidence showing a systematic increase in 6 the Chinese government’s repression of underground churches. 7 The BIA’s determination that Chen failed to establish a 8 material change in country conditions is supported by 9 substantial evidence. See Jian Hui Shao v. Mukasey, 546 10 F.3d 138, 171 (2d Cir. 2008). In considering country 11 conditions in China, the BIA reasonably relied on the 12 evidence submitted in support of Chen’s motion to reopen to 13 conclude that “during the years leading up to [her merits] 14 hearing, there was significant religious repression in 15 China.” See 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 16 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether 17 evidence accompanying a motion to reopen demonstrates a 18 material change in country conditions that would justify 19 reopening, [the BIA] compares the evidence of country 20 conditions submitted with the motion to those that existed 21 at the time of the merits hearing below.”). For example, as 22 noted by the BIA, Chen’s evidence reflected that, at the 3 1 time of her underlying proceedings, the Chinese government: 2 sent priests to labor camps for reeducation; increased its 3 crackdown on Christians, who were, at times, jailed, 4 tortured, and beaten to death; and cracked down on 5 underground churches and targeted church leaders with 6 criminal accusations. 7 Notwithstanding Chen’s argument to the contrary, the 8 BIA did not misinterpret her country conditions evidence. 9 See Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir. 2007) 10 (finding that as long as an inference “is tethered to the 11 evidentiary record, we will accord deference to the 12 finding”). In finding no change in country conditions, the 13 BIA determined that “[w]hile [Chen’s] evidence indicates 14 that the number of incidents reported involving Christians 15 may have increased after her hearing, the evidence further 16 shows that unregistered religious groups and their 17 activities have also increased.” Although Chen takes issue 18 with the BIA’s inference that any increase in religious 19 repression in China is a function of an increase in 20 religious activities rather than any change in the Chinese 21 government’s level of enforcement, it is not our role to 22 determine which possible inference is the most plausible. 4 1 See Siewe, 480 F.3d at 160 (“support for a contrary 2 inference – even one more plausible or more natural – does 3 not suggest error”). 4 Similarly, Chen’s argument that the BIA ignored 5 evidence demonstrating a material change in country 6 conditions in China is also without merit. While Chen 7 argues that the BIA failed to consider her China Aid Report 8 and an internet article purportedly showing a systematic 9 increase in the Chinese government’s repression of 10 underground churches, the agency is presumed to have “taken 11 into account all of the evidence before [it], unless the 12 record compellingly suggests otherwise,” Xiao Ji Chen v. 13 U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 14 2006), and is not required to “expressly parse or refute on 15 the record each individual argument or piece of evidence 16 offered by the petitioner,” Jian Hui Shao, 546 F.3d at 169 17 (quotation omitted). Here, the record does not suggest that 18 the BIA failed to consider Chen’s evidence, as the China Aid 19 Report does not include any statistics for Chen’s home 20 province of Fujian and was explicitly cited by the BIA in 21 its decision, and the task of resolving conflicts in the 22 record evidence, lies “largely within the discretion of the 23 agency,” see Jian Hui Shao, 546 F.3d at 171. As a result, 5 1 the BIA’s country conditions’ determination is supported by 2 substantial evidence, and the denial of Chen’s motion to 3 reopen was not an abuse of discretion. See 8 U.S.C. 4 § 1229a(c)(7)(C)(ii); Ali, 448 F.3d at 517. 5 Because the BIA did not reach the issue of Chen’s prima 6 facie eligibility for relief, we decline to consider Chen’s 7 arguments concerning the adequacy of her prima facie 8 showing. 9 For the foregoing reasons, the petition for review is 10 DENIED. As we have completed our review, any stay of 11 removal that the Court previously granted in this petition 12 is VACATED, and any pending motion for a stay of removal in 13 this petition is DISMISSED as moot. Any pending request for 14 oral argument in this petition is DENIED in accordance with 15 Federal Rule of Appellate Procedure 34(a)(2), and Second 16 Circuit Local Rule 34.1(b). 17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 6