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 2011-12

Hao Chen v. Eric Holder, Jr. , 458 F. App'x 229 ( 2011 )


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  •                                UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1661
HAO CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted:    November 28, 2011          Decided:   December 15, 2011
Before MOTZ, GREGORY, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Eric Y. Zheng, New York, New York, for Petitioner.    Tony West,
Assistant   Attorney  General,  Richard   M.  Evans,   Assistant
Director, Benjamin J. Zeitlin, 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Unpublished opinions are not binding precedent in this circuit.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:
Hao   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 changed 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); 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); 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).                           The motion
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“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).            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
     (quoting 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 by finding that Chen did not
show a change in country conditions that would allow for an
untimely motion to reopen.               The record before us does not compel
a finding that after Chen appeared before the immigration judge
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there was a change in country conditions in China concerning
that government’s treatment of members of the China Democracy
Party.     We also conclude there was no error in the Board’s
finding that Chen’s change in personal circumstances was not a
change in country 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’   change    in   personal      circumstance”       such    as    a
“desire to become politically active”).
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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