Fei Chan v. Holder ( 2013 )

12-141
Chan v. Holder
BIA
A073 544 429
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of August, two thousand thirteen.
5
6
7 PRESENT:
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 FEI CHAN, AKA HUI CHEN,
15
16 Petitioner,
17
18 v. 12-141
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Eric Y. Zheng, New York, New York.
27
28 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
29 Attorney General; Terri J. Scadron,
1 Assistant Director; Kathryn L.
2 Deangelis, Acting Senior Litigation
3 Counsel; Siu P. Wong, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 decision of the Board of Immigration Appeals (“BIA”), it is
9 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
10 review is DENIED.
11 Fei Chan, a native and citizen of the People’s Republic
12 of China, seeks review of a December 20, 2011, decision of
13 the BIA denying his motion to reopen. In re Fei Chan, No.
14 A073 544 429 (B.I.A. Dec. 20, 2011). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 of this case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion, mindful of the Supreme Court’s
19 admonition that such motions are “disfavored.” Ali v.
20 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
21 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA
22 considers relevant evidence of country conditions in
23 evaluating a motion to reopen, we review the BIA’s factual
24 findings under the substantial evidence standard. See Jian
25 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). An
2
1 alien may file a motion to reopen within 90 days of the
2 agency’s final administrative decision. 8 U.S.C.
3 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). Although Chan’s
4 motion was indisputably untimely because it was filed more
5 than nine years after the agency’s final order of removal,
6 see 8 U.S.C. § 1229a(c)(7)(C)(i), there are no time
7 limitations for filing a motion to reopen if it is “based on
8 changed country conditions arising in the country of
9 nationality or the country to which removal has been
10 ordered, if such evidence is material and was not available
11 and would not have been discovered or presented at the
12 previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
13 also 8 C.F.R. § 1003.2(c)(3)(ii).
14 The BIA did not err in finding that Chan’s conversion
15 to Christianity constituted a change in his personal
16 circumstances, rather than a change in country conditions
17 sufficient to excuse the untimely filing of his motion to
18 reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416
19 F.3d 129, 130-31 (2d Cir. 2005); see also Yuen Jin v.
20 Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). Nor did the BIA
21 err in finding that the country conditions evidence Chan
22 submitted failed to demonstrate a material change in country
3
1 conditions excusing the untimely filing of his motion
2 because that evidence demonstrated that the Chinese
3 government had continually targeted unregistered Christian
4 groups since the time of Chan’s last hearing and did not
5 indicate that conditions had worsened for individuals
6 similarly situated to Chan. See 8 U.S.C.
7 § 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at
8 169. Accordingly, the BIA did not abuse its discretion in
9 denying Chan’s motion to reopen as untimely. See 8 U.S.C.
10 § 1229a(c)(7)(C).
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 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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