Li Xin Chen v. Holder ( 2012 )

10-4801-ag BIA
Chen v. Holder Schoppert, IJ
A073 775 416
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 LI XIN CHEN,
14 Petitioner,
15
16 v. 10-4801-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; Anthony W. Norwood, Senior
27 Litigation Counsel; Hillel R. Smith,
28 Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Li Xin Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the October 26,
7 2010, decision of the BIA affirming the August 27, 2009,
8 decision of Immigration Judge (“IJ”) Douglas Schoppert
9 denying his motion to reopen. In re Li Xin Chen, No. A073
10 775 416 (B.I.A. Oct. 26, 2010), aff’g No. A073 775 416
11 (Immig. Ct. N.Y. City Aug. 27, 2009). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of the 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). We review the agency’s denial of the motion
18 to reopen for abuse of discretion. See Ali v. Gonzales, 448
19 F.3d 515, 517 (2d Cir. 2006). When the agency evaluates
20 country conditions evidence submitted with a motion to
21 reopen, we review its findings for substantial evidence.
22 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.
23 2008).
2
1 The agency’s denial of Chen’s motion to reopen as
2 untimely was not an abuse of discretion. A motion to reopen
3 generally must be filed no later than 90 days after the date
4 on which the final administrative decision has been rendered
5 in the proceedings sought to be reopened. 8 U.S.C.
6 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
7 dispute that Chen’s motion to reopen, filed in July 2009,
8 was untimely, because the IJ had ordered him excluded in
9 absentia in 1997. See id. However, the time and number
10 limitations do not apply to a motion to reopen if it is
11 “based on changed circumstances arising in the country of
12 nationality or in the country to which deportation has been
13 ordered, if such evidence is material and was not available
14 and could not have discovered or presented at the previous
15 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
16 § 1229a(c)(7)(C)(ii).
17 As the IJ found, Chen’s practice of Falun Gong in the
18 United States is a change in his personal circumstances, not
19 a change in country conditions. See Wei Guang Wang v. BIA,
20 437 F.3d 270, 273-74 (2d Cir. 2006); Yuen Jin v. Mukasey,
21 538 F.3d 143, 155 (2d Cir. 2008). Moreover, although Chen
22 argues that he demonstrated changed country conditions by
23 submitting evidence which shows that the Chinese government
3
1 had stepped up its enforcement efforts against Falun Gong
2 practitioners “even outside of China,” his argument is
3 meritless because the harm Falun Gong practitioners
4 allegedly suffered in the United States fails to show
5 “changed country conditions arising in the country of
6 nationality . . ..” 8 U.S.C. § 1229a(c)(7) (emphasis
7 added); 8 C.F.R. § 1003.2(c)(2) (same).
8 Further, the BIA’s determination that the evidence
9 submitted by Chen failed demonstrate changed country
10 conditions is supported by substantial evidence. See Jian
11 Hui Shao, 546 F.3d at 169. While the background materials
12 show a continued repression of Falun Gong practitioners in
13 China, as the BIA concluded, they do not show a worsening of
14 conditions for Falun Gong practitioners in a way material to
15 Chen’s claim, as the evidence Chen submitted did not focus
16 on persecution in China.
17 Finally, Chen’s argument that the BIA abused its
18 discretion by relying upon the 2007 United States Department
19 of State Profile of Asylum Claims and Country Conditions, is
20 meritless. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
21 F.3d 315, 342 (2d Cir. 2006) (noting that the weight
22 afforded to the applicant’s evidence lies largely within the
23 discretion of the agency); see also id. at 341 (“[A] report
4
1 from the State Department is usually the best available
2 source of information on country conditions.”) (quotations
3 omitted). We decline to reach Chen’s assertion that he has
4 established his prima facie eligibility for relief.
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
5