Li Mei Chen v. Holder , 391 F. App'x 930 ( 2010 )

09-2802-ag
Li M ei C hen v. H older
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3 rd day of September, two thousand ten.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges,
JED S. RAKOFF,
District Judge.*
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LI MEI CHEN,
Petitioner,
v. 09-2802-ag
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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APPEARING FOR PETITIONER: LI MEI CHEN, pro se, Alhambra, California.
APPEARING FOR RESPONDENT: KATHLYN DEANGELIS, Trial Attorney, Office
*
District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
of Immigration Litigation (Tony West, Assistant
Attorney General, Civil Division; Terri J.
Scadron, Assistant Director, Office of
Immigration Litigation, Lisa M. Damiano, Trial
Attorney, Office of Immigration Litigation, on the
brief), United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the
petition for review is DENIED.
Petitioner Li Mei Chen, a native and citizen of the People’s Republic of China, seeks
review of a June 5, 2009 order of the BIA denying her motion to reopen. In re Li Mei Chen,
No. A078 928 146 (B.I.A. June 5, 2009). We review the BIA’s denial of a motion to reopen
for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the
BIA evaluates evidence of country conditions submitted with a motion to reopen, we review
its findings for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
Cir. 2008). We assume the parties’ familiarity with the underlying facts and procedural
history of this case.
As an initial matter, we limit our review to the BIA’s 2009 decision denying Chen’s
motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.
2001) (holding that court reviews only denial of motion to reopen upon appeal therefrom).
Insofar as Chen also petitions for review of the 2008 denial of her claim for relief under the
Convention Against Torture, we have, in any event, already denied review of that decision.
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See Limei Chen v. Mukasey, 298 F. App’x 37, 39 (2d Cir. 2008) (summary order).
The BIA did not abuse its discretion in denying Chen’s motion to reopen as untimely.
A motion to reopen generally must be filed no later than 90 days after the date on which the
final administrative decision was rendered in the proceedings sought to be reopened. See
8 C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s motion to reopen, filed in December
2008, did not fall within that timeframe. The 90-day time limitation does not apply,
however, to a motion to reopen “based on changed circumstances arising in the country of
nationality or in the country to which deportation has been ordered, if such evidence is
material and was not available and could not have been discovered or presented at the
previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Insofar as Chen relied on this exception, the BIA did not err in finding that the birth
of her child and her second pregnancy in the United States did not constitute a change in
circumstances “arising in the country of nationality.” See Wei Guang Wang v. BIA, 437
F.3d 270, 273-74 (2d Cir. 2006) (holding that subsequent birth of petitioner’s child
constitutes changed personal conditions, not changed country conditions). Nor did the BIA
err in finding that Chen failed to demonstrate a material change in country conditions since
her April 2005 hearing with respect to her fear of persecution based on her adoption of the
Shouters religion. See Yuen Jin v. Mukasey, 538 F.3d 143, 155-56 (2d Cir. 2008). Chen
points to no evidence that China’s treatment of the Shouters has worsened since her April
2005 hearing. In fact, many of the articles she submitted to demonstrate Chinese persecution
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of the Shouters predated her merits hearing. See 8 C.F.R. § 1003.2(c)(3)(ii) (motion to
reopen must show “changed circumstances arising in the country of nationality . . . if such
evidence . . . could not have been discovered or presented at the previous hearing”); Matter
of S-Y-G-, 24 I. & N. Dec. 247, 257 (BIA 2007) (holding that new report or law is not
evidence of changed conditions without convincing evidence that prior version of law was
different, or was differently enforced, in some relevant and material way).
We have considered Chen’s other arguments on appeal and conclude that they are
without merit. Accordingly, the petition for review is DENIED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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