Feng Yu Chen v. Holder

12-3773
Chen v. Holder
BIA
A078 125 624
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 10th day of April, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _____________________________________
12
13 FENG YU CHEN,
14 Petitioner,
15
16 v. 12-3773
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Feng Yu Chen, pro se, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Ernesto H. Molina,
28 Jr., Assistant Director; Jeffrey R.
29 Leist, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Feng Yu Chen, a native and citizen of the People’s
6 Republic of China, seeks review of an August 28, 2012,
7 decision of the BIA denying her motion to reopen. In re
8 Feng Yu Chen, No. A078 125 624 (B.I.A. Aug. 28, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
15 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA
16 considers relevant evidence of country conditions in
17 evaluating a motion to reopen, we review the BIA’s factual
18 findings under the substantial evidence standard. See Jian
19 Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
20 As an initial matter, we need not review the BIA’s
21 denial of Chen’s motion to reopen insofar as it was based on
22 her claimed fear of persecution under China’s family
2
1 planning policy because she has not challenged the BIA’s
2 decision to that extent. See Yueqing Zhang v. Gonzales, 426
3 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005). Regardless,
4 liberally construing her brief as raising such an argument,
5 see Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir.
6 1999), the BIA did not abuse its discretion in this regard
7 because Chen did not submit any new material evidence as
8 required in a motion to reopen. See 8 U.S.C.
9 § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); see also INS v.
10 Abudu, 485 U.S. 94, 104-05 (1988).
11 The BIA did not err in alternatively denying Chen’s
12 motion to reopen as untimely and number-barred. An alien
13 may file only one motion to reopen within 90 days of the
14 agency’s final administrative decision. 8 U.S.C.
15 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Although
16 Chen’s motion was indisputably untimely and number-barred
17 because it was filed more than nine years after the agency’s
18 final order of removal and it was her second such motion,
19 see 8 U.S.C. § 1229a(c)(7)((A), C)(i), there are no time or
20 numerical limitations for filing a motion to reopen if it is
21 “based on changed country conditions arising in the country
22 of nationality or the country to which removal has been
3
1 ordered, if such evidence is material and was not available
2 and would not have been discovered or presented at the
3 previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
4 also 8 C.F.R. § 1003.2(c)(3)(ii).
5 Contrary to Chen’s contention, her conversion to
6 Christianity constituted a change in her personal
7 circumstances rather than a change in country conditions
8 sufficient to excuse the applicable limitations. See Li
9 Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31
10 (2d Cir. 2005); see also Yuen Jin v. Mukasey, 538 F.3d 143,
11 155 (2d Cir. 2008). Moreover, the BIA reasonably found that
12 Chen’s evidence did not demonstrate a material change in
13 country conditions because that evidence did not indicate
14 that conditions had worsened for individuals similarly
15 situated to Chen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see
16 also Jian Hui Shao, 546 F.3d at 169. Accordingly, the BIA
17 did not abuse its discretion in denying Chen’s motion to
18 reopen as untimely and number-barred. See 8 U.S.C.
19 § 1229a(c)(7)(C).
20 Finally, because Chen failed to demonstrate that
21 similarly situated individuals face persecution on account
22 of their religion, the BIA did not err in concluding that
23 she failed to demonstrate her prima facie eligibility for
4
1 relief, which also provided an independent basis for denying
2 her motion to reopen. See Abudu, 485 U.S. at 104.
3 For the foregoing reasons, the petition for review is
4 DENIED.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
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5