Xiu Yun Lin v. Holder , 417 F. App'x 9 ( 2009 )

07-5432-ag
Chen v. Holder
BIA
Nelson, IJ
A070 579 413
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 19 th day of November, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON. O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 JIN PING CHEN,
15 Petitioner,
16
17 v. 07-5432-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
0 9 1 4 0 9 -2 7
1 FOR PETITIONER: Gary J. Yerman, New York, New York.
2
3 FOR RESPONDENT: Jeffrey S. Bucholtz, Acting Assistant
4 Attorney General; Alison Marie Igoe,
5 Senior Litigation Counsel; Ann
6 Carroll Varnon, Attorney; Office of
7 Immigration Litigation, Civil
8 Division, United States Department of
9 Justice, Washington, D.C.
10
11 UPON DUE CONSIDERATION of this petition for review of a
12 Board of Immigration Appeals (“BIA”) decision, it is hereby
13 ORDERED, ADJUDGED, AND DECREED, that the petition for review
14 is DENIED.
15 Petitioner Jin Ping Chen, a native and citizen of the
16 People’s Republic of China, seeks review of the November 13,
17 2007 order of the BIA that: (1) affirmed the February 28,
18 2006 decision of Immigration Judge (“IJ”) Barbara A. Nelson,
19 denying her motion to reopen; and (2) denied her motion to
20 remand. In re Jin Ping Chen, No. A070 579 413 (B.I.A. Nov.
21 13, 2007), aff’g No. A070 579 413 (Immig. Ct. N.Y. City Feb.
22 28, 2006). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 When the BIA adopts the decision of the IJ and
25 supplements the IJ’s decision, we review the decision of the
26 IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
27 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s
28 denial of a motion to reopen or remand for abuse of
2
1 discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2 2006); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149,
3 157 (2d Cir. 2005). A motion to remand that relies on newly
4 available evidence is held to the substantive requirements
5 of a motion to reopen. Li Yong Cao, 421 F.3d at 156. When
6 the agency considers relevant evidence of country conditions
7 in evaluating a motion to reopen, we review the agency’s
8 factual findings under the substantial evidence standard.
9 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
10 2008).
11 The agency did not err in denying Chen’s untimely
12 motions. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.
13 § 1003.2(c)(2). Chen argues that the agency erred in
14 finding that the evidence she submitted failed to
15 demonstrate either material changed country conditions
16 sufficient to excuse the untimely filing of her motions or
17 her prima facie eligibility for relief from deportation.
18 However, these arguments fail where we have previously
19 reviewed the BIA’s consideration of evidence similar to that
20 which Chen submitted and have found no error in its
21 conclusion that such evidence is insufficient to establish
22 either material changed country conditions or a reasonable
23 possibility of persecution. See Jian Hui Shao, 546 F.3d at
3
1 169-72 (noting that “[w]e do not ourselves attempt to
2 resolve conflicts in record evidence, a task largely within
3 the discretion of the agency”); see also Wei Guang Wang v.
4 BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the
5 BIA must consider evidence such as “the oft-cited Aird
6 affidavit, which [it] is asked to consider time and again[,]
7 . . . it may do so in summary fashion without a reviewing
8 court presuming that it has abused its discretion”).
9 Chen’s arguments related to the filing of a successive
10 asylum application are without merit. See Yuen Jin v.
11 Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir. 2008).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23 By:___________________________
4