14-736
Chen v. Sessions
BIA
A073 489 668
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 9th day of August, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 PIERRE N. LEVAL,
10 Circuit Judges.
11 _____________________________________
12
13 JINXIA CHEN,
14 Petitioner,
15
16 v. 14-736
17 NAC
18
19 JEFFERSON B. SESSIONS, III,
20 UNITED STATESATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Jan Allen Reiner, New York, New
25 York.
26
27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
28 Attorney General; Eric W.
29 Marsteller, Senior Litigation
30 Counsel; Rachel L. Browning, Trial
31 Attorney, Office of Immigration
32 Litigation, United States
1 Department of Justice, Washington,
2 D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review is
7 DENIED.
8 Petitioner Jinxia Chen, a native and citizen of China,
9 seeks review of a February 11, 2014, decision of the BIA denying
10 her motion to reopen as untimely and number barred. In re
11 Jinxia Chen, No. A073 489 668 (B.I.A. Feb. 11, 2014). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history in this case.
14 The applicable standards of review are well established.
15 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
16 2008). Chen moved to reopen her exclusion proceedings to
17 present new evidence in support of her claimed fear of
18 persecution based on the births of her children in the United
19 States purportedly in violation of China’s population control
20 program.
21 It is undisputed that Chen’s motion to reopen was untimely
22 and number barred because it was her fifth motion to reopen filed
23 more than seventeen years after her deportation order became
24 final. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
25 § 1003.2(c)(2). These time and numerical limitations do not
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1 apply if the motion is to reopen proceedings in order to apply
2 for asylum “based on changed country conditions arising in the
3 country of nationality or the country to which removal has been
4 ordered, if such evidence is material and was not available and
5 would not have been discovered or presented at the previous
6 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
7 8 C.F.R. § 1003.2(c)(3)(ii).
8 For largely the same reasons set forth in Jian Hui Shao,
9 we find no error in the agency’s determination that Chen failed
10 to demonstrate materially changed country conditions excusing
11 the untimely and number barred filing of her motion. See 546
12 F.3d at 159-66, 169-73 (noting that country conditions evidence
13 from 1998 to 2007 indicated that enforcement of family planning
14 policy was generally lax in Fujian Province with isolated
15 reports of force being used); see also In re S-Y-G-, 24 I. &
16 N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether evidence
17 accompanying a motion to reopen demonstrates a material change
18 in country conditions that would justify reopening, [the BIA]
19 compare[s] the evidence of country conditions submitted with
20 the motion to those that existed at the time of the merits
21 hearing below.”). Chen also failed to demonstrate a material
22 change in the economic penalties used to enforce China’s
23 population control policy given evidence that heavy fines have
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1 been levied for violations since before her 1995 hearing. See
2 In re S-Y-G-, 24 I. & N. Dec. at 257 (“Change that is incremental
3 or incidental does not meet the regulatory requirements for late
4 motions.”).
5 For the foregoing reasons, the petition for review is
6 DENIED.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
4
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