10-3251-ag
Chen v. Holder
BIA
A077 913 677
A078 707 481
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 21st day of March, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 BI ZHU CHEN, LONG QING CHEN,
14 Petitioners,
15
16 v. 10-3251-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: John Chang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Holly M. Smith, Senior
27 Litigation Counsel; Joseph D. Hardy,
28 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 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Bi Zu Chen and her husband, Long Qing Chen, natives and
6 citizens of the People’s Republic of China, seek review of a
7 July 27, 2010, decision of the BIA denying their motion to
8 reopen. In re Bi Zu Chen, Long Qing Chen, Nos. A077 913 677,
9 A078 707 481 (B.I.A. July 27, 2010). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of this case.
12 We review the BIA’s denial of the Chens’ motion to
13 reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
14 515, 517 (2d Cir. 2006). When, as here, the BIA considers
15 relevant evidence of country conditions in evaluating a
16 motion to reopen, we review the BIA’s factual findings under
17 the substantial evidence standard. See Jian Hui Shao v.
18 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
19 An alien may file only one motion to reopen and must do
20 so within 90 days of the agency’s final administrative
21 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
22 Although the Chens’ motion was indisputably untimely because
23 it was filed more than six years after the agency’s final
2
1 order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), there is
2 no time limitation for filing a motion to reopen if it is
3 “based on changed country conditions arising in the country
4 of nationality or the country to which removal has been
5 ordered, if such evidence is material and was not available
6 and would not have been discovered or presented at the
7 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
8 The BIA did not abuse its discretion in finding that
9 Mr. Chen’s newly commenced practice of Christianity and his
10 recent illness constituted changes in his personal
11 circumstances, rather than a change in country conditions
12 sufficient to excuse the untimely filing of the Chens’
13 motion to reopen. See Li Yong Zheng v. U.S. Dep’t of
14 Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (explaining
15 that a change in “personal circumstances in the United
16 States” did not constitute a change in country conditions
17 excusing the filing deadline for motions to reopen).
18 Moreover, the BIA did not err in finding that the country
19 conditions evidence that the Chens submitted in support of
20 their motion to reopen did not demonstrate a material change
21 in country conditions excusing the untimely filing of their
22 motion because, although the evidence indicated that the
3
1 Chinese government had begun a “crackdown” against leaders
2 of unregistered Christian churches, it did not indicate that
3 the treatment of Christians practicing in those churches had
4 changed. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also Jian
5 Hui Shao, 546 F.3d at 169. Accordingly, the BIA did not
6 abuse its discretion in denying the Chens’ motion to reopen
7 as untimely. See 8 U.S.C. § 1229a(c)(7).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DENIED as moot.
13
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
4