Jie Chen v. Holder , 457 F. App'x 63 ( 2012 )

11-629-ag
Chen v. Holder
BIA
A096 790 332
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 31st day of January, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 JIE CHEN,
14 Petitioner,
15
16 v. 11-629-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Dehai Zhang, Flushing, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Sarone Solomon, Legal
28 Intern, Office of Immigration
29 Litigation, United States Department
30 of Justice, 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 Jie Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a January 21,
7 2011, decision of the BIA denying her motion to reopen her
8 removal proceedings. In re Jie Chen, No. A096 790 332
9 (B.I.A. Jan. 21, 2011). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). An alien seeking to reopen proceedings is
15 required to file a motion to reopen no later than 90 days
16 after the date on which the final administrative decision
17 was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Chen’s motion to
19 reopen, filed in April 2010, was untimely because the BIA
20 issued a final order of removal in August 2009. See
21 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
22 Chen contends, however, that a crackdown on democracy
23 activists in China and the Chinese government’s awareness of
2
1 her Chinese Democracy Party (“CDP”) activities in the United
2 States constitutes changed circumstances, excusing the
3 untimeliness of her motion to reopen. See 8 U.S.C.
4 § 1229a(c)(7)(C)(ii). As the BIA reasonably noted, however,
5 Chen failed to show changed country conditions with respect
6 to the Chinese government’s treatment of democracy activists
7 because the evidence submitted during Chen’s original
8 hearing showed that China’s crackdown against its political
9 opponents and persecution of CDP members was continuing.
10 See 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N.
11 Dec. 247, 253 (B.I.A. 2007). Moreover, the BIA reasonably
12 determined that Chen failed to offer any material evidence
13 in support of her claim of changed country conditions
14 because, as the BIA noted, Chen did “not submit[] any new
15 evidence or argument sufficient to overcome the prior
16 adverse credibility determination.” See Kaur v. BIA, 413
17 F.3d 232, 234 (2d Cir. 2005) (per curiam).
18 Although Chen argues that the BIA ignored her summons,
19 fathers’ letters, and siblings’ affidavits, the record does
20 not compellingly suggest that the BIA failed to consider any
21 evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 159
22 (2d Cir. 2008). Indeed, the BIA explicitly considered
3
1 Chen’s evidence, and reasonably noted that Chen’s father’s
2 letters and siblings’ affidavits were from interested
3 witnesses not subject to cross examination, and that Chen’s
4 summons was not authenticated and failed to indicate any
5 awareness by Chinese officials of her presence in the United
6 States. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
7 315, 342 (2d Cir. 2006). Further, the BIA reasonably relied
8 on the prior adverse credibility determination in declining
9 to credit Chen’s evidence. See Qin Wen Zheng v. Gonzales,
10 500 F.3d 143, 146-49 (2d Cir. 2007).
11 Because the BIA reasonably concluded that Chen did not
12 demonstrate a material change in country conditions in
13 China, it did not abuse its discretion by denying her motion
14 to reopen as untimely. See 8 U.S.C.
15 § 1229a(c)(7)(C)(i), (ii). Because the motion was untimely,
16 we decline to address Chen’s claim that she established her
17 prima facie eligibility for relief.
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
4
1 oral argument in this petition is DENIED in accordance with
2 Federal Rule of Appellate Procedure 34(a)(2), and Second
3 Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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