Chen v. Barr ( 2020 )

18-1205
Chen v. Barr
BIA
A078 853 842
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 TO 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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 24th day of April, two thousand twenty.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 SUSAN L. CARNEY,
9 RICHARD J. SULLIVAN,
10 Circuit Judges.
11 _____________________________________
12
13 CUI PING CHEN, AKA ANNIE DUONG,
14 Petitioner,
15
16 v. 18-1205
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Dehai Zhang, Esq., Flushing, NY.
24
25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
26 General; Derek C. Julius,
27 Assistant Director; Margaret
28 Kuehne Taylor, Senior Litigation
29 Counsel, Office of Immigration
30 Litigation, United States
31 Department of Justice, Washington,
32 DC.
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 Cui Ping Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an April 16, 2018,
7 decision of the BIA denying her motion to reopen. In re Cui
8 Ping Chen, No. A 078 853 842 (B.I.A. Apr. 16, 2018). We
9 assume the parties’ familiarity with the underlying facts and
10 procedural history.
11 An alien seeking to reopen proceedings may file only one
12 motion to reopen no later than 90 days after the final
13 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i);
14 8 C.F.R. § 1003.2(c)(2). Chen’s 2017 motion was untimely
15 because it was filed approximately six years after her final
16 removal order. But there is an exception: “There is no time
17 limit on the filing of a motion to reopen if the basis of the
18 motion is to apply for [asylum] and is based on changed
19 country conditions arising in the country of nationality or
20 the country to which removal has been ordered, if such
21 evidence is material and was not available and would not have
22 been discovered or presented at the previous proceeding.” 8
23 U.S.C. § 1229a(c)(7)(C)(ii).
2
1 We review the agency’s denial of a motion to reopen for
2 abuse of discretion but review any finding regarding changed
3 country conditions for substantial evidence. Jian Hui Shao
4 v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). “An abuse
5 of discretion may be found in those circumstances where the
6 [BIA’s] decision provides no rational explanation,
7 inexplicably departs from established policies, is devoid of
8 any reasoning, or contains only summary or conclusory
9 statements; that is to say, where the [BIA] has acted in an
10 arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t
11 of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations
12 omitted).
13 The BIA did not abuse its discretion in declining to
14 reopen to the extent that Chen sought to apply for asylum
15 because her motion largely relied on her changed personal
16 circumstances. See Wei Guang Wang v. BIA, 437 F.3d 270, 273
17 (2d Cir. 2006) (holding that changed personal circumstances
18 do not fall within the changed conditions exception to
19 reopening). And her limited country conditions evidence only
20 addressed events after 2015; it did not address how conditions
21 have changed since her 2011 final removal order. Her
22 evidence showed persecution of Christians attending
23 unregistered churches in some parts of China, but it did not
3
1 reflect a material worsening of conditions as compared to the
2 record before the IJ. For example, a 2007 State Department
3 report that Chen submitted with her original asylum
4 application notes that in some parts of China, “local security
5 officials use threats, demolition of unregistered property,
6 interrogation, arrest, imprisonment, and sometimes severe
7 physical abuse to target unregistered religious leaders and
8 their followers.” The BIA reasonably concluded that Chen
9 failed to establish that conditions have changed materially
10 since her 2009 hearing. See In re S-Y-G-, 24 I. & N. Dec.
11 247, 253 (BIA 2007) (“In determining whether evidence
12 accompanying a motion to reopen demonstrates a material
13 change in country conditions that would justify reopening,
14 [the BIA] compare[s] the evidence of country conditions
15 submitted with the motion to those that existed at the time
16 of the merits hearing below.”).
17 The BIA also reasonably observed that Chen has not
18 presented evidence that Chinese authorities are aware of, or
19 are likely to become aware of, her practice of Christianity
20 in the United States, as required to establish prima facie
21 eligibility for asylum for claims based solely on activities
22 undertaken within the United States. See Hongsheng Leng v.
23 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008); see also INS v.
4
1 Abudu, 485 U.S. 94, 104–05 (1988) (even assuming there has
2 been a change in conditions, the agency may nevertheless deny
3 reopening where a movant fails to demonstrate prima facie
4 eligibility for relief from removal). Chen did not support
5 her claim that Chinese authorities are surveilling her with
6 any evidence.
7 While the BIA has regulatory authority to reopen untimely
8 proceedings sua sponte, 8 C.F.R. § 1003.2(a), Chen has not
9 raised this issue before the agency or this Court.
10 For the foregoing reasons, the petition for review is
11 DENIED. All pending motions and applications are DENIED and
12 stays VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
5