Xing Di Chen v. Lynch

12-3832
Chen v. Lynch
BIA
A096 131 581
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 28th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XING DI CHEN,
14 Petitioner,
15
16 v. 12-3832
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Vlad Kuzmin, Kuzmin & Associates,
24 P.C., New York, NY.
25
26
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General
Eric H. Holder, Jr., as the Respondent in this case.
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; William C.
3 Peachey, Assistant Director; Brianne
4 Whelan Cohen, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Xing Di Chen, a native and citizen of China,
14 seeks review of an August 27, 2012, decision of the BIA
15 denying his motion to reopen his removal proceedings. In re
16 Xing Di Chen, No. A096 131 581 (B.I.A. Aug. 27, 2012). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
21 (2d Cir. 2006) (per curiam). An alien seeking to reopen
22 proceedings is required to file a motion to reopen no later
23 than 90 days after the date on which the final
24 administrative decision was rendered and is permitted to
25 file only one such motion. See 8 U.S.C. § 1229a(c)(7)(A),
26 (C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that
2
1 Chen’s motion to reopen, filed in January 2012, was untimely
2 and number-barred, because his order of removal became final
3 in 2007 and the BIA previously denied reopening in 2008.
4 Chen contends, however, that his conversion to
5 Christianity in the United States, the Chinese government’s
6 awareness of his United States church activities, and the
7 recent crackdown on underground churches in China constitute
8 materially changed conditions excusing the time and number
9 limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
10 § 1003.2(c)(3).
11 As an initial matter, Chen’s conversion is a change in
12 personal circumstances, not a change in conditions as
13 required to excuse the time and number limitations. See
14 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).
15 Moreover, the BIA did not otherwise abuse its discretion in
16 finding that conditions for Chinese Christians had not
17 materially changed since Chen’s 2005 merits hearing. See
18 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see also
19 In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In
20 determining whether evidence accompanying a motion to reopen
21 demonstrates a material change in country conditions that
22 would justify reopening, [the BIA] compare[s] the evidence
3
1 of country conditions submitted with the motion to those
2 that existed at the time of the merits hearing below.”).
3 While Chen relies on the U.S. Department of State’s 2010
4 International Religious Freedom Report (“2010 Report”), the
5 BIA reasonably concluded that this report reflected a
6 continuation of conditions that had existed at the time of
7 Chen’s 2005 merits hearing given similarities in treatment
8 described in a 2004 report. See Xiao Ji Chen v. U.S. Dep’t
9 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that
10 the weight accorded to evidence lies largely within the
11 agency’s discretion); see also Shao, 546 F.3d at 171
12 (recognizing that the task of resolving conflicts in the
13 record evidence, lies “largely within the discretion of the
14 agency”).
15 The BIA also did not err in considering Chen’s notices,
16 which described the local religious and family planning laws
17 generally, and specifically named Chen as an offender and
18 threatened to take his father’s assets. First, the BIA did
19 not err in according diminished weight to the notices
20 because they were not authenticated by any means. See id.
21 at 341-42; see also Cao He Lin v. U.S. Dep’t of Justice, 428
22 F.3d 391, 404 (2d Cir. 2005). The notices also lacked any
4
1 indicia of authenticity when read in the context of the
2 record, because Chen did not establish how he obtained them.
3 See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir.
4 2007). Second, the BIA did not err in finding that the
5 notices did not show a material change in country
6 conditions, given that they did not specify Chen’s
7 prospective punishment. See Shao, 546 F.3d at 165, 172. To
8 the extent that one notice threatened financial harm, Chen
9 failed to support his motion with sufficient evidence to
10 demonstrate that this harm would rise to the level of
11 persecution. See id.; Guan Shan Liao v. U.S. Dep’t of
12 Justice, 293 F.3d 61, 70 (2d Cir. 2002).
13 Lastly, the BIA did not err in according diminished
14 evidentiary weight to the letters from Chen’s father and
15 uncle. See Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209,
16 215 (B.I.A. 2010) (giving diminished evidentiary weight to
17 letters from “relatives and friends,” because they were from
18 interested witnesses not subject to cross-examination),
19 rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d
20 130 (2d Cir. 2012). And regardless of weight, these letters
21 were insufficient to establish a change in country
22 conditions because they do not describe a change in the way
23
5
1 Christians have been treated since Chen’s merits hearing in
2 2005. See In re S-Y-G, 24 I. & N. Dec at 253.
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
6