Qiyao Chen v. Holder ( 2011 )

10-768-ag
Qiyao Chen v. Holder
BIA
A095 377 030
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
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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.
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 30th day of November, two thousand eleven.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
QIYAO CHEN,
Petitioner,
v. 10-768-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Adedayo O. Idowu, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Anthony P. Nicastro, Senior
Litigation Counsel; Dana M.
Camilleri, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Qiyao Chen, a native and citizen of the
People’s Republic of China, seeks review of a February 2,
2010, order of the BIA denying his motion to reopen. In re
Qiyao Chen, No. A095 377 030 (B.I.A. Feb. 2, 2010). We
assume the parties’ familiarity with the underlying facts
and procedural history of this case.
We have reviewed the BIA’s denial of Chen’s motion to
reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). Ordinarily, an alien may only file
one motion to reopen and must do so within 90 days of the
final administrative decision. 8 U.S.C. § 1229a(c)(7); 8
C.F.R. § 1003.2(c)(2). Although Chen’s fourth motion before
the BIA was indisputably untimely and number-barred, there
is no time or numerical limitation if the alien establishes
materially “changed country conditions arising in the
country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
8 C.F.R. § 1003.2(c)(3)(ii).
I. Family Planning
The BIA did not abuse its discretion in finding that
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Chen failed to establish a material change in the Chinese
government’s enforcement of the family planning policy or
his prima facie eligibility for relief based on the birth of
his U.S. citizen children. Chen’s arguments are foreclosed
by our decision in Jian Hui Shao v. Mukasey, 546 F.3d 138
(2d Cir. 2008).
The notice Chen submitted from the Lianqi Town Family
Planning Office was not material to his claim because it
merely referenced the policy’s mandatory sterilization
requirement without indicating that such sterilizations are
performed by force, see id. at 165, 172, and the BIA did not
err in giving the notice reduced weight in light of the
immigration judge’s underlying adverse credibility
determination, see Qin Wen Zheng v. Gonzales, 500 F.3d 143,
147 (2d Cir. 2007). With respect to the letter from Chen’s
mother suggesting that the family planning policy had become
stricter for individuals returning with foreign-born
children, the BIA did not err in finding that this
“anecdotal” statement, In re Qiyao Chen, No. A095 377 030,
slip op. at 3, was insufficient to overcome the country
conditions evidence in the record indicating that the
Chinese government’s enforcement of the family planning
policy had not materially changed since the time of Chen’s
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prior hearing. See Jian Hui Shao, 546 F.3d at 171 (“We do
not ourselves attempt to resolve conflicts in record
evidence, a task largely within the discretion of the
agency”). Furthermore, the letter from Chen’s friend, in
which he claimed that he was “intimidated and harassed” by
family planning officials when he returned to Lianqi town
after fathering two children in the United States, did not
indicate that the mistreatment he suffered rose to the level
of persecution, nor did he claim that he was sterilized,
forcibly or otherwise. See id. at 165, 172. Furthermore,
the events the friend described occurred in 2003, several
months before Chen filed his first motion to reopen with the
BIA in May 2004. See 8 C.F.R. § 1003.2(c)(1) (requiring
motions to reopen to be based on new and previously
unavailable evidence).
Finally, the BIA was not be compelled to conclude that
Chen demonstrated a reasonable possibility that the
imposition of fines for the birth of his children would
cause him severe harm amounting to economic persecution.
See In re T-Z-, 24 I. & N. Dec. 163, 170-75 (B.I.A. 2007);
see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d
61, 70 (2d Cir. 2002) (determining that the agency
reasonably concluded that the petitioner failed to
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demonstrate economic persecution when he did not present any
testimony or other evidence of his income in China, his net
worth at the time of the fines, or any other facts that
would make it possible to evaluate his personal financial
circumstances in relation to the fines imposed by the
government); Jian Hui Shao, 546 F.3d at 161-62, 164 & n.25
(finding that the 2006 Country Report did not compel the
conclusion that an alien had demonstrated a reasonable
possibility of facing severe economic compulsion to submit
to sterilization and noting that the BIA had reasonably
concluded that the petitioners would face moderate fines not
amounting to persecution for any violation of the family
planning policy).
II. Christianity
The BIA also did not abuse its discretion in finding
that Chen failed to establish material changed country
conditions with respect to the Chinese government’s
treatment of practicing Christians. Although Chen argues
that he “submitted Country Reports [from] China reflecting
changed (worsen[ed]) circumstances regarding China’s
religious freedom,” Pet’r’s Br. at 22, as the BIA noted, the
2008 U.S. State Department Country Report on China that Chen
proffered stated that “freedom to participate in religious
activities continued to increase in many areas,” and that
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“[i]n [some] areas hundreds of members of unregistered
groups or house churches met openly with local authorities’
full knowledge.” In re Qiyao Chen, No. A095 377 030, slip
op. at 4. Chen did not submit any evidence before the BIA
discussing the treatment of Christians in his home province
of Fujian. Thus, the BIA did not abuse its discretion in
determining that he failed to demonstrate a material change
in the Chinese government’s treatment of Christians in
Fujian Province. See Qin Wen Zheng, 500 F.3d at 149.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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