Ping Gui Chen v. Holder ( 2009 )

09-1094-ag
Chen v. Holder
BIA
A078 745 541
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 30 th day of December, two thousand nine.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 PING GUI CHEN,
14 Petitioner,
15
16 v. 09-1094-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Michael Brown, New York, New York
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, David V. Bernal, Assistant
1 Director, Jesse M. Bless, Trial
2 Attorney, Courtney A. Henson, Law
3 Clerk, Office of Immigration
4 Litigation, Civil Division, United
5 States Department of Justice,
6 Washington, D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 decision of the Board of Immigration Appeals (“BIA”), it is
9 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
10 review is DENIED.
11 Petitioner Ping Gui Chen, a native and citizen of the
12 People’s Republic of China, seeks review of the February 24,
13 2009 order of the BIA denying his motion to reopen. In re
14 Ping Gui Chen, No. A 078 745 541 (B.I.A. Feb. 24, 2009). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history of the case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
19 Cir. 2006) (citing INS v. Doherty, 503 U.S. 314, 322-23
20 (1992)). Here, the BIA did not abuse its discretion in
21 denying Chen’s motion to reopen as time barred. The
22 regulations permit an alien to file one motion to reopen and
23 require that it be filed within 90 days after the date on
24 which a final administrative decision was rendered in the
25 proceeding sought to be reopened. See 8 C.F.R.
26 § 1003.2(c)(2). It is undisputed that Chen’s motion to
2
1 reopen was untimely. However, the time limits do not apply
2 to a motion to reopen that is “based on changed
3 circumstances arising in the country of nationality or in
4 the country to which deportation has been ordered, if such
5 evidence is material and was not available and could not
6 have been discovered or presented at the previous hearing.”
7 8 C.F.R. § 1003.2(c)(3)(ii). Such changes are typically
8 referred to as “changed country conditions” and
9 distinguished from “changed personal circumstances.” See,
10 e.g., Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003).
11 The BIA reasonably found that Chen’s decision to
12 practice Falun Gong in the U.S. was a changed personal
13 circumstance, not a changed country condition. See id. And
14 we find no merit in Chen’s argument that the BIA erred in
15 declining to credit an unauthenticated, unsigned notice from
16 the Kuiqi Village Committee stating that he would be
17 persecuted on account of his Falun Gong activities in the
18 U.S. See Qin Wen Zheng, 500 F.3d 143, 148-49 (2d Cir. 2007).
19 Contrary to Chen’s argument, it was not improper for the BIA
20 to view with suspicion Chen’s motion to reopen, and the
21 evidence submitted therein, given its prior adverse
22 credibility determination. See id.; Borovikova v. U.S.
23 Dep’t of Justice, 435 F.3d 151 (2d Cir. 2006).
3
1 We conclude that, the BIA did not err in denying Chen’s
2 untimely motion to reopen. See 8 C.F.R. § 1003.2(c)(2),
3 (c)(3)(ii).
4 For the foregoing reasons, the petition for review is
5 DENIED. The pending motion for a stay of removal in
6 connection with this petition is DISMISSED as moot.
7
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12 By:___________________________
4