09-2355-ag
    Tian v. BIA
                                                                                  BIA
                                                                          A073 556 441

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 27 TH day of July, two thousand ten.

    PRESENT:

             GUIDO CALABRESI,
             REENA RAGGI,
             RICHARD C. WESLEY,
                   Circuit Judges.
    _________________________________________

    DE SHENG TIAN,
             Petitioner,

                  v.                                       09-2355-ag
                                                           NAC
    BOARD OF IMMIGRATION APPEALS,
             Respondent.
    _________________________________________

    FOR PETITIONER:               Thomas D. Barra, Forest Hills, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, William Peachey, Assistant
                                  Director, Ada Bosque, Senior
                                  Litigation Counsel, Puneet Cheema,
                                  Law Clerk, Civil Division, Office of
                          Immigration Litigation, United
                          States Department of Justice,
                          Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner De Sheng Tian, a native and citizen of the

People’s Republic of China, seeks review of the May 18,

2009, order of the BIA, which denied his motion to reopen.

In re De Sheng Tian, No. A073 556 441 (B.I.A. May 18, 2009).

We review the BIA’s denial of a motion to reopen for abuse

of discretion.   See Kaur v. BIA, 

, 233 (2d Cir.

2005).   In doing so, we assume the parties’ familiarity with

the underlying facts and procedural history of the case.

    Because the BIA issued its final order of removal in

May 1996, it is undisputed that Tian’s November 2008 motion

to reopen was untimely.    See 8 C.F.R. § 1003.2(c)(2).    While

there is no time limitation for motions to reopen “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


                                2
hearing,” 8 C.F.R. § 1003.2(c)(3)(ii), the BIA reasonably

found that Tian did not qualify for such an exception.      As

the BIA noted, Tian’s recent practice of Christianity and

the birth of his U.S. citizen children constitute changed

personal circumstances, not changed country conditions.      See

Wei Guang Wang v. BIA, 

, 273-74 (2d Cir. 2006).

    The BIA also reasonably found that Tian failed to

demonstrate that the Chinese government’s treatment of

Christians in China had “changed for the worse in recent

years.”   See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.

§ 1003.2(c)(1).   Although Tian submitted a State Department

2005 Country Report to support his claim of changed country

conditions, that report stated simply that the Chinese

government’s “respect for religious freedom remained poor.”

Certified Admin. Record at 121 (emphasis added).

    Finally, we identify no error in the BIA’s conclusion

that Tian failed to demonstrate his eligibility for relief

under the Convention Against Torture based on his illegal

departure from China. See Mu Xiang Lin v. U.S. Dep't of

Justice, 

, 159-60 (2d Cir. 2005).   The BIA’s

denial of Tian’s untimely motion to reopen was therefore not




                              3
an abuse of discretion. 1   See 8 C.F.R. § 1003.2(c)(3)(ii);

see also Wei Guang 

.

    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




    1
      We do not reach Tian’s argument that he established
changed country conditions relating to China’s treatment of
“political dissidents.” That argument was not raised before
the BIA and is therefore unexhausted. See Lin Zhong v. U.S.
Dep’t of Justice, 

, 119-20 (2d Cir. 2007).
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