Filed: Mar. 21, 2012
Latest Update: Mar. 21, 2012
Summary: SUMMARY ORDER UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Tian Hua Yan, a Chinese native and citizen, seeks review of the BIA's denial of his motion to reopen his removal proceedings. We assume the parties' familiarity with the underlying facts and procedural history. We review BIA decisions on motions to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515 , 517 (2d Cir. 2006). Yan's second renewed motion to reo
Summary: SUMMARY ORDER UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Tian Hua Yan, a Chinese native and citizen, seeks review of the BIA's denial of his motion to reopen his removal proceedings. We assume the parties' familiarity with the underlying facts and procedural history. We review BIA decisions on motions to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515 , 517 (2d Cir. 2006). Yan's second renewed motion to reop..
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SUMMARY ORDER
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Tian Hua Yan, a Chinese native and citizen, seeks review of the BIA's denial of his motion to reopen his removal proceedings. We assume the parties' familiarity with the underlying facts and procedural history.
We review BIA decisions on motions to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Yan's second renewed motion to reopen was number barred and untimely because he filed it more than five years after his final removal order. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Nevertheless, the 90-day timeliness requirement does not apply to motions to reopen based on changed country conditions, so long as the new evidence is material, was previously unavailable, and could not have been discovered and presented at the prior hearing. 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii). Changed country conditions are distinct from changed personal circumstances. See, e.g., Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
As a preliminary matter, we find Yan exhausted his claim of deteriorating country conditions because he argued before the BIA that China's conditions had deteriorated before and after the Olympics. Nevertheless, we conclude the BIA did not abuse its discretion by rejecting Yan's argument.
First, while Yan's Falun Gong practice may have changed his personal circumstances, it did not change the conditions in China. Second, substantial evidence supports the BIA's findings that Falun Gong repression has been ongoing since Yan's 2003 hearing, so he could have, and should have, made the argument then. While Yan suggests China increased repression of Falun Gong practitioners in the lead up to the Olympics, there is evidence that repression of Falun Gong practitioners has been constant and ongoing since Yan's 2003 hearing. Third, the BIA's references to Yan's submitted evidence, "demonstrate that it has considered such evidence" and rejected it. Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
To conclude, it was not an abuse of discretion to find no changed country conditions and to deny Yan's motion as untimely. We have considered and reject Yan's other arguments. Yan's petition for review is DENIED.
