11-4107 BIA
Chen v. Holder Gordon-Uruakpa, IJ
A070 894 073
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 24th day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN CHENG CHEN,
14 Petitioner,
15
16 v. 11-4107
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Leslie McKay,
27 Assistant Director; Allison Frayer,
28 Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, 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 Jian Cheng Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a September 13, 2011,
7 order of the BIA affirming the October 8, 2010, decision of
8 Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying
9 his motion to reopen. In re Jian Cheng Chen, No. A070 894
10 073 (B.I.A. Sept. 13, 2011), aff’g No. A070 894 073 (Immig.
11 Ct. N.Y. City Oct. 8, 2010). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 of this case.
14 Under the circumstances of this case, we have
15 considered both the IJ’s and the BIA’s opinions “for the
16 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
17 (2d Cir. 2008). The applicable standards of review are well
18 established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
19 168-69 (2d Cir. 2008). We find no abuse of discretion in
20 this case.
21 Initially, there is no dispute that Chen’s 2010 motion
22 to reopen was untimely because his administrative order of
23 deportation became final in 1998. See 8 U.S.C.
24 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). To the extent
2
1 Chen contends that the time and number limitations do not
2 apply to his motion to reopen because his motion is “based
3 on changed circumstances arising in” China, 8 U.S.C.
4 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), his
5 arguments were properly rejected. Chen asserts that he
6 established changed conditions in China because the China
7 Democracy Party (“CDP”) was not established until six months
8 after his hearing date in 1998, and this change applies to
9 him because he has since become a CDP member in the United
10 States. However, as the agency found, his recent membership
11 in the CDP was a change in personal circumstances, not a
12 change in country conditions. See Yuen Jin v. Mukasey, 538
13 F.3d 143, 155 (2d Cir. 2008). Moreover, as the agency
14 found, Chen failed to demonstrate material changed
15 conditions in China because his evidence did not discuss the
16 Chinese government’s treatment of CDP members returning from
17 the United States, much less a change in the treatment of
18 such individuals. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see
19 also Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.
20 2005) (absent “solid support” in the record that her fear is
21 objectively reasonable, a petitioner’s claim is “speculative
22 at best”).
23 Accordingly, the agency did not abuse its discretion in
24 denying Chen’s motion to reopen as untimely, 8 U.S.C.
3
1 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii). Because the
2 agency’s denial of Chen’s motion to reopen as untimely is
3 dispositive, we do not consider his alternate argument that
4 he established his prima facie eligibility for relief. See
5 Jian Hui Shao, 546 F.3d at 168. Chen does not challenge the
6 agency’s denial of his motion to rescind his in absentia
7 deportation order or its denial of his motion as a matter of
8 discretion.
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
4