Zu Fa Chen v. Holder

10-5119-ag
Chen v. Holder
BIA
A098 220 237
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 18th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
REENA RAGGI,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
ZU FA CHEN
Petitioner,
v. 10-5119-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL
Respondent.
______________________________________
FOR PETITIONER: Zu Fa Chen, pro se, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Jennifer Paisner Williams,
Senior Litigation Counsel; Tiffany
L. Walters, Trial Attorney, Office
of Immigration Litigation, Civil
Division, 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 Zu Fa Chen, a native and citizen of China,
seeks review of a November 18, 2010, order of the BIA
denying his motion to reopen. In re Zu Fa Chen, No. A098
220 237 (B.I.A. Nov. 18, 2010). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers relevant evidence of
country conditions in evaluating a motion to reopen, we
review the BIA’s factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008).
Here, because Chen filed his motion to reopen more than
90 days after the BIA issued a final order of removal in his
case, he was required to show changed circumstances in China
to excuse the untimely filing. See 8 U.S.C.
§ 1229a(c)(7)(C)(i), (ii). Chen contends that the BIA
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abused its discretion by discounting his evidence that his
wife was beaten by the police who threatened to punish Chen
if he returned to China because of his criticism of the
family planning policy. This argument is unavailing.
The BIA reasonably declined to credit the medical
records, documenting Chen’s wife’s alleged injuries, as they
were unauthenticated and Chen was previously found not
credible. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-
149 (2d Cir. 2007) (holding that the BIA did not abuse its
discretion in declining to credit documents, including a
purported government document which had not been
authenticated, where the alien had been found not credible
by the IJ). And the BIA was not required to credit Chen’s
wife’s affidavit in light of the IJ’s adverse credibility
determination. See id. at 148. Thus, the BIA did not abuse
its discretion in declining to credit Chen’s evidence from
his wife absent further authentication and corroboration.
See id. at 148-49.
Additionally, the newspaper articles Chen submitted
with his motion to reopen, discussing China’s treatment of
some dissidents and their families, did not establish a
material change in China as they demonstrated only China’s
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continuing persecution of dissidents. Accordingly,
substantial evidence supports the agency’s finding that Chen
did not establish changed country conditions and the BIA did
not abuse its discretion in denying his motion to reopen as
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i),(ii).
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 DISMISSED 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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