Gian Chen v. Holder

10-1076-ag
Chen v. Holder
BIA
A096 040 865
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 24th day of March, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 GIAN CHEN, ALSO KNOWN AS QIAN CHEN,
14 ALSO KNOWN AS JIAN CHEN,
15 Petitioner,
16
17 v. 10-1076-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Gian Chen, Pro Se, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; John S. Hogan, Senior
29 Litigation Counsel; Edward E.
30 Wiggers, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
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 Gian Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the February 25,
7 2010, decision of the BIA denying his motion to reopen. In
8 re Gian Chen, No. A096 040 865 (B.I.A. Feb. 25, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 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). When the BIA evaluates country conditions
14 evidence submitted with a motion to reopen, we review its
15 findings for substantial evidence. See Jian Hui Shao v.
16 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). An applicant may
17 file one motion to reopen within ninety days of the date on
18 which a final administrative decision was rendered in the
19 proceeding sought to be reopened. See 8 C.F.R.
20 § 1003.2(c)(2). Chen filed his motion to reopen more than
21 eighteen months after his removal order became
22 administratively final. There is no merit to his argument
23 that his motion was timely because it was filed within
2
1 ninety days of this Court’s denial of his petition for
2 review, as the regulation provides that the 90-day period
3 runs from the final administrative order. Id. However, the
4 time and numerical limitations do not apply to a motion to
5 reopen that is “based on changed circumstances arising in
6 the country of nationality or in the country to which
7 deportation has been ordered, if such evidence is material
8 and was not available and could not have been discovered or
9 presented at the previous hearing.” 8 C.F.R.
10 § 1003.2(c)(3)(ii). The BIA did not err in concluding that
11 Chen’s recent involvement with the Chinese Democracy Party
12 (“CDP”) was a change in personal circumstances, not a change
13 in conditions in China as required to obtain reopening. See
14 Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31
15 (2d Cir. 2005); see also Wei Guang Wang v. BIA, 437 F.3d
16 270, 273-74 (2d Cir. 2006).
17 Moreover, substantial evidence supports the BIA’s
18 finding that Chen failed to establish changed country
19 conditions with respect to his CDP claim. A review of the
20 record reveals that the BIA considered Chen’s evidence and
21 found that, although it addressed recent treatment of
22 political dissidents, it did not address any change in
23 conditions. Indeed, Chen submitted evidence related only to
3
1 recent incidents in China, and only nominally related to the
2 CDP. Accordingly, as the record does not show changed
3 conditions in China, but merely a change in Chen’s personal
4 circumstances, the BIA did not abuse its discretion in
5 denying Chen’s motion to reopen as untimely. See Wei Guang
6 Wang, 437 F.3d at 273-74. Finally, Chen’s claim that he
7 qualifies for asylum, withholding of removal and relief
8 under CAT is not properly before us. Our review is limited
9 to the bases for the BIA’s decision, which in this case was
10 a denial of an untimely motion to reopen. See Kaur v. BIA,
11 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DENIED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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