Xiu Xing Chen v. Holder

11-1405-ag
Chen v. Holder
BIA
A078 293 062
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1st day of February, two thousand twelve.
PRESENT:
DENNIS JACOBS,
Chief Judge,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
_________________________________________
XIU XING CHEN,
Petitioner,
v. 11-1405-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Stuart Mitchell Lewis Altman,
Westfield, New Jersey.
FOR RESPONDENT: Tony West, Assistant Attorney
General; William C. Peachey,
Assistant Director, Office of
Immigration Litigation; Mona Maria
Yousif, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Xiu Xing Chen, a native and citizen of the
People’s Republic of China, seeks review of the March 25,
2011, order of the BIA denying her motion to reopen. In re
Xiu Xing Chen, No. A078 293 062 (B.I.A. Mar. 25, 2011). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
The BIA’s denial of Chen’s motion to reopen as untimely
and number-barred was not an abuse of discretion. See Kaur
v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An
alien may file one motion to reopen, generally no later than
ninety days after the date on which the final administrative
decision was rendered in the proceedings sought to be
reopened. 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i); 8
C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s 2010
motion was untimely and number-barred, as she previously
filed two motions to reopen, and the final administrative
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order was issued in 2005. See 8 U.S.C. §§ 1229a(c)(7)(A),
1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the
time limitation does not apply to a motion to reopen if it
is “based on changed circumstances arising in the country of
nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available
and could not have been discovered or presented at the
previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8
U.S.C. § 1229a(c)(7)(C)(ii), the BIA concluded that Chen
failed to establish changed circumstances for Christians
arising in China.
Chen argues that she demonstrated an increase in
China’s persecution of underground Christian church members
since her 2003 merits hearing. The BIA’s determination that
the evidence failed to demonstrate changed circumstances in
China is supported by substantial evidence. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing
the BIA's fact-finding regarding changed circumstances for
substantial evidence). While the background materials Chen
submitted noted an increase in the number of Christians
persecuted between 2006 and 2009, there is no indication of
the conditions that existed at the time of Chen’s 2003
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merits hearing, or whether the increase in incidents
corresponded to a proportionate increase in church members.
Furthermore, the 2009 reports from the State Department
provide that the Chinese government “continued to strictly
control religious practice,” suggesting similar treatment of
underground churches in previous years. Additionally, the
BIA did not err in affording minimal weight to Chen’s
mother’s statement that Chinese officials controlled
underground churches “more strictly recently” due to the
lack of corresponding dates or details. See Qin Wen Zheng
v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (holding that
"the BIA does not abuse its discretion in crediting the
State Department reports in the face of uncorroborated
anecdotal evidence to the contrary"). Substantial evidence
therefore supports the BIA’s finding that Chen did not
establish changed conditions for Christians in China.
Because the evidence Chen submitted was insufficient to
establish a change in country conditions, the BIA did not
abuse its discretion in concluding that she failed to meet
an exception to the filing requirements, and in consequently
denying her motion to reopen as untimely and number-barred.
See 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i)-(ii); 8
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C.F.R. § 1003.2(c)(2)-(3). Contrary to Chen’s argument that
the BIA ignored evidence, the BIA explicitly addressed her
background materials in its decision, and did not err in
failing to cite each piece of evidence because substantial
evidence supports its findings. Xiao Ji Chen, 471 F.3d at
336 n.17.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2) and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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