Filed: Apr. 13, 2012
Latest Update: Feb. 22, 2020
Summary: 11-2759-ag Chen v. Holder BIA A078 387 919 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 “SU
Summary: 11-2759-ag Chen v. Holder BIA A078 387 919 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 “SUM..
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11-2759-ag
Chen v. Holder
BIA
A078 387 919
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 13th day of April, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 DEBRA ANN LIVINGSTON,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 ZHEN YU CHEN,
14 Petitioner,
15
16 v. 11-2759-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Brooke M. Maurer, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Zhen Yu Chen, a native and citizen of the People’s
6 Republic of China, seeks review of a June 10, 2011, decision
7 of the BIA denying his motion to reopen. In re Zhen Yu
8 Chen, No. A078 387 919 (B.I.A. June 10, 2011). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of Li’s motion to reopen for
12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
13 Cir. 2006). When, as here, the BIA considers relevant
14 evidence of country conditions in evaluating the motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
18 An alien may file only one motion to reopen and must do
19 so within 90 days of the agency’s final administrative
20 decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
21 § 1003.2(c)(2). Although Chen’s motion was indisputably
22 untimely because it was filed more than three years after
23 the agency’s final order of removal, see 8 U.S.C.
2
1 § 1229a(c)(7)(C)(i), there is no time limitation for filing
2 a motion to reopen to apply or reapply for asylum if it is
3 “based on changed country conditions arising in the country
4 of nationality or the country to which removal has been
5 ordered, if such evidence is material and was not available
6 and would not have been discovered or presented at the
7 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
8 also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not
9 abuse its discretion in finding that Chen failed to
10 establish such circumstances based on his newly-commenced
11 practice of Christianity in the United States. See Li Yong
12 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
13 Cir. 2005) (explaining that a change in “personal
14 circumstances in the United States” did not constitute a
15 change in country conditions excusing the filing deadline
16 for motions to reopen).
17 Moreover, the BIA did not abuse its discretion in
18 finding that Chen failed to establish a material change in
19 country conditions as required to except his motion from the
20 time limitation, as the record evidence reflected merely a
21 continuation of conditions that existed prior to Chen’s 2005
22 hearing. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
3
1 § 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I. & N. Dec. 247,
2 253 (BIA 2007) (noting that in evaluating evidence of
3 changed country conditions, the BIA “compare[s] the evidence
4 of country conditions submitted with the motion to those
5 that existed at the time of the merits hearing below”).
6 Indeed, the BIA, referencing the U.S. State Department and
7 organizational reports and newspaper articles in the record,
8 reasonably found that this country conditions evidence did
9 not indicate an intensification in the persecution of
10 unregistered Christians in China since Chen’s 2005
11 proceedings, but rather reflected an ongoing policy of
12 repression, harassment, and mistreatment of unsanctioned
13 religious worship. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see
14 also 8 C.F.R. § 1003.2(c)(3)(ii); See Siewe v. Gonzales, 480
15 F.3d 160, 167 (2d Cir. 2007) (“where there are two
16 permissible views of the evidence, the fact finder’s choice
17 between them cannot be clearly erroneous.”).
18 Finally, given the BIA’s explicit references to the
19 documentation submitted with the motion to reopen, a
20 reasonable fact-finder would not be compelled to conclude
21 that the BIA ignored any of Chen’s evidence. See Xiao Ji
22 Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 337 n.17 (2d
23 Cir. 2006)(holding that the BIA is not required to
4
1 “expressly parse or refute on the record each individual
2 argument or piece of evidence offered by the petitioner” as
3 long as it “has given reasoned consideration to the
4 petition, and made adequate findings”). Accordingly, the
5 BIA did not abuse its discretion by denying Chen’s motion.
6 See Ali, 448 F.3d at 517.
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
17
18
5
