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 2012-04

Jibin Chen v. Eric Holder, Jr. , 477 F. App'x 974 ( 2012 )


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  •                                UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2272
JIBIN CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted:    April 20, 2012                 Decided:   April 27, 2012
Before WILKINSON and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Thomas D. Barra, New York, New York, for Petitioner. Stuart F.
Delery,   Acting   Assistant   Attorney  General,  Jennifer L.
Lightbody, Senior Litigation Counsel, Nicole J. Thomas-Dorris,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jibin   Chen,    a       native    and     citizen   of   the     People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) denying his motion to reopen as
untimely and for failing to show a change in country conditions.
We deny the petition for review.
An alien may file one motion to reopen within ninety
days   of   the   entry   of       a   final     order    of   removal.         8   U.S.C.
§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2011).
The time limit does not apply if the basis for the motion is to
seek asylum or withholding of removal based on changed country
conditions, “if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding.”      8 U.S.C. § 1229a(c)(7)(C)(ii) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii).
This court reviews the denial of a motion to reopen
for abuse of discretion.                8 C.F.R. § 1003.2(a) (2011); INS v.
Doherty,
    502 U.S. 314
    , 323-24 (1992); Mosere v. Mukasey,
    552 F.3d 397
    , 400 (4th Cir. 2009).                  The Board’s “denial of a motion
to reopen is reviewed with extreme deference, given that motions
to   reopen    are    disfavored        because     every      delay    works       to   the
advantage of the deportable alien who wishes merely to remain in
the United States.”        Sadhvani v. Holder,
    596 F.3d 180
    , 182 (4th
Cir.   2009)    (citations     and       internal      quotation    marks     omitted).
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The motion “shall state the new facts that will be proven at a
hearing    to       be    held     if   the         motion    is    granted    and    shall   be
supported       by       affidavits       or    other        evidentiary      material.”       8
C.F.R. § 1003.2(c)(1) (2011).                       Further, the motion “shall not be
granted unless it appears to the Board that evidence sought to
be offered is material and was not available and could not have
been discovered or presented at the former hearing.”
    Id. This court has 
         also         recognized     three   independent
grounds on which a motion to reopen removal proceedings may be
denied:     “(1) the alien has not established a prima facie case
for the underlying substantive relief sought; (2) the alien has
not   introduced          previously         unavailable,          material    evidence;      and
(3) where       relief       is    discretionary,             the    alien    would    not     be
entitled to the discretionary grant of relief.”                               Onyeme v. INS,
    146 F.3d 227
    , 234 (4th Cir. 1998) (citing INS v. Abudu,
    485 U.S. 94
    , 104-05 (1988)).                 This court will reverse a denial of a
motion    to    reopen       only       if     it    is    “‘arbitrary,       irrational,      or
contrary to law.’”
    Mosere, 552 F.3d at 400 
    (citing Sevoian v.
Ashcroft,
    290 F.3d 166
    , 174 (3d Cir. 2002)).
We    have    reviewed          the       record    and   conclude     that    the
Board did not abuse its discretion finding Chen did not show a
change in country conditions that would excuse a late motion to
reopen.     There was no error in the Board’s finding that Chen’s
change in personal circumstances was not a change in country
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conditions.     See Najmabadi v. Holder,
    597 F.3d 983
    , 991 (9th
Cir.   2010)   (recognizing     the    “perverse     incentive       that      would
result from granting an applicant reopening based on a ‘self-
induced’   changed   in   personal     circumstance”        such    as    a    sudden
desire to become politically active).              We further conclude that
substantial evidence supports the finding that Chen failed to
show an actual change in country conditions.
Accordingly,    we   deny       the   petition    for    review.       We
dispense   with   oral    argument      because      the    facts        and   legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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