Qi Bin Chen v. Holder

08-3412-ag
Chen v. Holder
BIA
Chew, IJ
A073 054 457
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 31 st day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________________
QI BIN CHEN,
Petitioner,
v. 08-3412-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr., is automatically substituted for former
Attorney General Michael B. Mukasey as respondent in this case.
051710-19
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General; Barry J. Pettinato,
Assistant Director; Kristin A. Moresi,
Trial 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 Qi Bin Chen, a native and citizen of the
People’s Republic of China, seeks review of the June 19, 2008
order of the BIA, affirming the May 3, 2007 decision of
Immigration Judge (“IJ”) George T. Chew, which denied his
motion to reopen. In re Qi Bin Chen, No. A073 054 457 (B.I.A.
June 19, 2008), aff’g No. A073 054 457 (Immig. Ct. N.Y. City
May 3, 2007). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we review only the
decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268,
271 (2d Cir. 2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413
F.3d 188, 191 n.4 (2d Cir. 2005). We review the agency’s
denial of a motion to reopen for abuse of discretion. Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). When the agency
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considers relevant evidence of country conditions in
evaluating a motion to reopen, we review the agency’s factual
findings under the substantial evidence standard. See Jian
Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not err in affirming the IJ’s denial of
Chen’s untimely motion to reopen. See 8 U.S.C. §
1229a(c)(7)(C); see also 8 C.F.R. § 1003.23(b). We have
previously reviewed the agency’s consideration of evidence
similar to that which Chen submitted and have found no error
in its conclusion that such evidence is insufficient to
establish either material changed country conditions excusing
the untimely filing of a motion to reopen or a reasonable
possibility of forced sterilization. See Jian Hui Shao, 546
F.3d at 169-72; see also Wei Guang Wang v. BIA, 437 F.3d 270,
275 (2d Cir. 2006). Because the BIA found that the IJ
reasonably concluded that Chen failed to demonstrate either
material changed country conditions excusing the untimely
filing of his motion to reopen or his prima facie eligibility
for relief from removal, we need not consider his challenge to
the agency’s determination that his proceedings did not
warrant reopening as a matter of discretion. See 8 C.F.R. §
1003.23(b); see also INS v. Abudu, 485 U.S. 94, 104-05 (1988).
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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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