11-1527-ag
Chen v. Holder
BIA
A073 560 815
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 8th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _________________________________________
12
13 MEI ER CHEN,
14
15 Petitioner,
16
17 v. 11-1527-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21
22 Respondent.
23 _________________________________________
24
25 FOR PETITIONER: Thomas D. Barra, New York,
26 New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Carl H. McIntyre, Jr.,
1 Assistant Director; Dawn S. Conrad,
2 Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED, that the petition for review
10 is DENIED.
11 Petitioner Mei Er Chen, a native and citizen of the
12 People’s Republic of China, seeks review of a March 24,
13 2011, order of the BIA denying her motion to reopen. In re
14 Mei Er Chen, No. A073 560 815 (B.I.A. March 24, 2011). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 We have reviewed the BIA’s denial of Chen’s motion to
18 reopen for abuse of discretion. See Ali v. Gonzales, 448
19 F.3d 515, 517 (2d Cir. 2006). Because Chen filed her second
20 motion to reopen in 2011, more than 90 days after the final
21 administrative decision, 8 U.S.C. § 1229a(c)(7)(C);
22 8 C.F.R. § 1003.2(c)(2), she was required to demonstrate
23 “changed country conditions arising in the country of
24 nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Chen does not
25 dispute that her motion was time- and number-barred, but
2
1 argues that she demonstrated a material change in country
2 conditions sufficient to excuse her motion based on her
3 newly commenced practice of Falun Gong and deteriorating
4 conditions for Falun Gong practitioners in China.
5 As a preliminary matter, Chen did not assert that she
6 feared harm on account of her practice of Christianity
7 before the BIA and we will thus decline to consider any
8 related arguments in the first instance. See 8 U.S.C.
9 § 1252(d)(1); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004);
10 see also Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
11 119-20 (2d Cir. 2007).
12 The BIA did not abuse its discretion in denying Chen’s
13 2010 motion based on her failure to demonstrate changed
14 country conditions. The BIA reasonably found that Chen’s
15 Falun Gong practice, which postdated by roughly 15 years the
16 agency’s final order of deportation, constituted a change in
17 personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d
18 142, 155 (2d Cir. 2008)(noting that aliens who have been
19 ordered removed may not “change their personal circumstances
20 (e.g., by having children or practicing a persecuted
21 religion) and initiate new proceedings via a new asylum
22 application.”); Wei Guang Wang v. BIA, 437 F.3d 270, 273-74
3
1 (2d Cir. 2006) (making clear that the time and numerical
2 limitations on motions to reopen may not be suspended
3 because of a “self-induced change in personal circumstances”
4 that is “entirely of [the applicant’s] own making after
5 being ordered to leave the United States”).
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
4