09-4986-ag
         Chen v. Holder
                                                                                         BIA
                                                                                 A073 133 568
                           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.


1             At a stated term of the United             States Court of Appeals
2        for the Second Circuit, held at the             Daniel Patrick Moynihan
3        United States Courthouse, 500 Pearl             Street, in the City of
4        New York, on the 7 th day of October,            two thousand ten.

 5       PRESENT:
 6                ROGER J. MINER,
 7                JOSÉ A. CABRANES,
 8                DENNY CHIN,
 9                    Circuit Judges.
10       _________________________________________

11       BAO MI CHEN, a.k.a. BAOMI CHEN,
12                Petitioner,

13                        v.                                       09-4986-ag
14                                                                 NAC
15       ERIC H. HOLDER, JR., UNITED STATES
16       ATTORNEY GENERAL,
17                Respondent.
18       _________________________________________

19       FOR PETITIONER:                Gary J. Yerman, New York, New York.

20       FOR RESPONDENT:                Tony West, Assistant Attorney
21                                      General; John C. Cunningham, Senior
22                                      Litigation Counsel; Joseph D. Hardy,
23                                      Trial Attorney, Office of
24                                      Immigration Litigation, United
25                                      States Department of Justice,
26                                      Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5        Petitioner Bao Mi Chen (“Chen”), a native and citizen

6    of the People’s Republic of China, seeks review of the

7    November 17, 2009 order of the BIA denying his motion to

8    reopen.     In re Bao Mi Chen, No. A073 133 568 (B.I.A. Nov.

9    17, 2009).     The BIA denied Chen’s motion to reopen as

10   untimely filed and number barred, and the BIA found

11   inapplicable the exception for alleged changed country

12   conditions in Chen’s native People’s Republic of China.

13       We “review the denial of motions to reopen immigration

14   proceedings for abuse of discretion, mindful that motions to

15   reopen are disfavored . . . .”      See Ali v. Gonzales, 448

, 517 (2d Cir. 2006) (internal quotation marks

17   omitted).     As in this case, when the BIA evaluates evidence

18   of “changed country conditions” submitted with a motion to

19   reopen, we review its findings for whether substantial

20   evidence supports the BIA’s findings.      See Jian Hui Shao v.

21   Mukasey, 

, 169 (2d Cir. 2008).      We assume the

22   parties’ familiarity with the underlying facts and

23   procedural history of the case.


                                     2
1        The BIA did not abuse its discretion in denying Chen’s

2    motion to reopen as untimely and number-barred.     See Ali,

.   A motion to reopen generally must be filed

4    no later than 90 days after the date on which the final

5    administrative decision was rendered in the proceedings

6    sought to be reopened and only one such motion may be filed.

7    8 C.F.R. § 1003.2(c)(2).    There is no dispute that Chen’s

8    second motion to reopen, filed in February 2009, was

9    numerically barred and untimely.     See 

time and number limitations do not apply to a

11   petitioner’s motion to reopen if it is “based on changed

12   circumstances arising in the country of nationality or in

13   the country to which deportation has been ordered, if such

14   evidence is material and was not available and could not

15   have been discovered or presented at the previous hearing.”

16   

   In denying Chen’s motion to reopen,

17   the BIA reasonably concluded that his adoption of

18   Christianity in the United States — well over a decade after

19   an immigration judge originally denied Chen’s application

20   for asylum — did not excuse the time or number limit barring

21   his motion because it constituted a change in his personal

22   circumstances rather than a change in circumstances “arising

23   in the country of nationality.”     See Wei Guang Wang v. BIA,

24   

, 274 (2d Cir. 2006).

                                    3
1        Furthermore, the BIA did not err in finding that Chen

2    failed to demonstrate a material change in country

3    conditions with respect to the treatment of underground

4    churches in China.   See Jian Hui 

.      The

5    record supports the BIA’s finding that the treatment of

6    unregistered religious groups varies widely within China,

7    with some areas allowing such groups to practice openly.

8    Moreover, the religious persecution recounted in the State

9    Department Reports in the record is identified as occurring

10   in provinces other than Chen’s native Fujian Province.

11   Although Chen proffered a letter written to him from his

12   native province, which discussed the suppression of

13   underground churches, this letter failed to indicate if this

14   activity has changed in any material way since 1995, when

15   Chen was originally excluded from the United States.

16   Therefore, the BIA reasonably found that the conclusory

17   assertions contained in this letter regarding changed

18   circumstances in the Fujian Province were insufficient to

19   establish changed circumstances that would materially alter

20   the outcome of Chen’s case, particularly absent any

21   comparative evidence of the treatment of underground

22   churches in Chen’s home province at the time of his hearing

23   before the immigration judge.       See Jian Hui Shao, 

1    at 169 ; 8 C.F.R. § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24

2    I. & N. Dec. 247, 257 (B.I.A. 2007) (finding that “a new

3    report or a new law is not evidence of changed conditions

4    without convincing evidence that the prior version of the

5    law was different, or was differently enforced, in some

6    relevant and material way”).

7        For the foregoing reasons, the petition for review is

8    DENIED.   As we have completed our review, any stay of

9    removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot. Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk




                                    5