Document Info

DocketNumber: 17-1569

Citation Numbers: 353 F. App'x 562

Judges: Jacobs, Newman, Leval

Filed Date: 12/15/2009

Status: Non-Precedential

Modified Date: 11/5/2024

  •          09-1020-ag
    Chen v. Holder
    BIA
    A078 412 192
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
    FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
    AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
    LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
    ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
    “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
    TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
    BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
    PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
    HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
    ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
    DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
    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 15 th day of December, two thousand                nine.
    5
    6       PRESENT:
    7                GUIDO CALABRESI,
    8                BARRINGTON D. PARKER,
    9                RICHARD C. WESLEY,
    10                         Circuit Judges.
    11       _________________________________________
    12
    13       LI YING CHEN,
    14                Petitioner,
    15
    16                        v.                                       09-1020-ag
    17                                                                 NAC
    18       ERIC H. HOLDER, JR., UNITED STATES
    19       ATTORNEY GENERAL,
    20                Respondent.
    21       _________________________________________
    22
    23       FOR PETITIONER:                Cora J. Chang, New York, New York.
    24
    25       FOR RESPONDENT:                Tony West, Assistant Attorney
    26                                      General; Blair T. O’Connor,
    1                            Assistant Director; Joan H. Hogan,
    2                            Attorney, Office of Immigration
    3                            Litigation, United States Department
    4                            of Justice, Washington, D.C.
    5
    6        UPON DUE CONSIDERATION of this petition for review of a
    7    Board of Immigration Appeals (“BIA”) decision, it is hereby
    8    ORDERED, ADJUDGED, AND DECREED, that the petition for review
    9    is DENIED.
    10       Petitioner Li Ying Chen, a native and citizen of the
    11   People’s Republic of China, seeks review of a February 20,
    12   2009 order of the BIA denying her motion to reopen.    In re
    13   Li Ying Chen, No. A078 412 192 (B.I.A. Feb. 20, 2009).      We
    14   assume the parties’ familiarity with the underlying facts
    15   and procedural history in this case.
    16       We review the BIA’s denial of a motion to reopen for
    17   abuse of discretion.   See Kaur v. BIA, 
    413 F.3d 232
    , 233 (2d
    18   Cir. 2005) (per curiam).    There is no dispute that Chen’s
    19   second motion to reopen filed in October 2008 was untimely
    20   and number-barred when the BIA issued a final order of
    21   removal in February 2003.    See 
    8 C.F.R. § 1003.2
    (c)(2).
    22   However, there are no time and numerical limitations for
    23   filing a motion to reopen if it is “based on changed
    24   circumstances arising in the country of nationality or in
    2
    1    the country to which deportation has been ordered, if such
    2    evidence is material and was not available and could not
    3    have been discovered or presented at the previous hearing.”
    4    
    8 C.F.R. § 1003.2
    (c)(3)(ii).   The BIA reasonably found that
    5    Chen did not qualify for such an exception.
    6    A.   Family Planning Claim
    7         Chen argues that the BIA erred in failing to adequately
    8    consider as evidence of changed country conditions the
    9    Notice from family planning officials in the record,
    10   entitled “Documentation of Tantou Town Birth Control Office
    11   of Changle City” (“Notice”).   The BIA did not err in
    12   summarily concluding that the unauthenticated and unsigned
    13   Notice that Chen submitted did not demonstrate material
    14   changed circumstances in China.     See Wei Guang Wang v. BIA,
    15   
    437 F.3d 270
    , 275 (2d Cir. 2006).
    16        Because the BIA did not abuse its discretion in
    17   summarily considering and rejecting the Notice that Chen
    18   submitted as evidence of changed circumstances in China, see
    19   
    id.,
     it reasonably denied her motion to reopen as untimely
    20   and number-barred, see 
    8 C.F.R. § 1003.2
    (c).     Accordingly,
    21   we need not consider Chen’s argument that she demonstrated
    22   her prima facie eligibility for relief based on the family
    23   planning policy.   See 
    8 C.F.R. § 1003.2
    (c).
    3
    1
    2    B.   Christianity Claim
    3         The BIA also did not err in declining to reopen Chen’s
    4    proceedings based on her new practice of Christianity
    5    because she failed to submit an application for asylum
    6    regarding such a claim for relief.    See 
    8 C.F.R. § 7
      1003.2(c)(1) (“A motion to reopen proceedings for the
    8    purpose of submitting an application for relief must be
    9    accompanied by the appropriate application for relief.”).
    10   In addition, the BIA did not err in finding that Chen’s new
    11   practice of Christianity constituted a change in her
    12   personal circumstances and not a change in country
    13   conditions excusing the time and numerical limitations for
    14   filing her motion to reopen.   See Li Yong Zheng v. U.S.
    15   Dep’t of Justice, 
    416 F.3d 129
    , 130-31 (2d Cir. 2005).     The
    16   BIA also reasonably found that Chen failed to demonstrate
    17   material changed country conditions related to her
    18   Christianity claim because she did not submit in support of
    19   her motion any country conditions evidence discussing the
    20   treatment of Christians in China.    See 8 U.S.C.
    21   § 1229a(c)(7)(B); 
    8 C.F.R. § 1003.2
    (c)(1).    Accordingly, the
    22   BIA did not abuse its discretion in denying her untimely and
    23   number-barred motion to reopen to apply for relief based on
    4
    1    her religion.   See 
    8 C.F.R. § 1003.2
    (c)(3)(ii); see also Wei
    2    Guang Wang, 
    437 F.3d at 273-74
    .
    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(b).
    11                               FOR THE COURT:
    12                               Catherine O’Hagan Wolfe, Clerk
    13
    14                               By:___________________________
    5