Li Feng Chen v. Holder ( 2010 )

09-3492-ag
Chen v. Holder
BIA
A077 341 215
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 24 th day of May, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 RICHARD C. WESLEY,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 LI FENG CHEN, also known as ZI WEN WANG,
14 Petitioner,
15
16 v. 09-3492-ag
17 NAC
18 ERIC H. HOLDER, Jr., U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gerald Karikari, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Carl H. McIntyre, Assistant
27 Director, Justin R. Markel, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Li Feng Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a July 20, 2009,
7 order of the BIA denying his motion to reopen his removal
8 proceedings. In re Li Feng Chen, No. A077 341 215 (B.I.A.
9 July 20, 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA properly denied Chen’s motion to reopen as
17 untimely because he filed it over six years after his July
18 2002 final order of removal. See id.; 8 C.F.R.
19 § 1003.2(c)(2).
20 The 90-day filing deadline may be excused if the alien
21 can establish “changed country conditions arising in the
22 country of nationality . . . .” 8 U.S.C.
2
1 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Here,
2 however, the BIA reasonably concluded that reopening was not
3 warranted because Chen’s motion was based not on changed
4 country conditions in China, but on changed personal
5 circumstances – his conversion to Catholicism. See Yuen Jin
6 v. Mukasey, 538 F.3d 143, 155-56 (2d Cir. 2008) (holding
7 that the existing legal system does not permit aliens who
8 have been ordered removed “to disregard [those] orders and
9 remain in the United States long enough to change their
10 personal circumstances (e.g., by having children or
11 practicing a persecuted religion) and initiate new
12 proceedings via a new asylum application”); see also Wei
13 Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting
14 that “apparent gaming of the system in an effort to avoid
15 [removal] is not tolerated by the existing regulatory
16 scheme”). Furthermore, there is no merit to Chen’s argument
17 that he was not required to show changed country conditions
18 in order to excuse the untimely filing of his motion to
19 reopen. See Yuen Jin, 538 F.3d at 151.
20 Lastly, in challenging the BIA’s finding that he failed
21 to demonstrate how the treatment of Christians in China
22 today differed from that which existed at the time his
3
1 hearing concluded, Chen cites only to evidence not in the
2 administrative record. However, evidence not included in
3 the administrative record is not reviewable by this Court.
4 See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni v.
5 Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). Accordingly, we
6 will not disturb the BIA’s changed country conditions
7 finding. We also need not reach Chen’s argument that he is
8 prima facie eligible for relief because he was required to
9 show changed country conditions in order to succeed on his
10 untimely motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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