10-3064-ag
Chun v. Holder
                                                                                BIA
                                                                        A072 483 923
                   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 19th day of July, two thousand eleven.

PRESENT:
         JON O. NEWMAN,
         RICHARD C. WESLEY,
         PETER W. HALL,
         Circuit Judges.
_________________________________________

LIU CHUN,
                 Petitioner,

                 v.                                                10-3064-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_________________________________________

FOR PETITIONER:                 Peter S. Gordon, Forest Hills, New
                                York.

FOR RESPONDENT:                 Tony West, Assistant Attorney General;
                                Holly M. Smith, Senior Litigation
                                Counsel; Edward C. Durant, 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 Liu Chun, a native and citizen of the People’s

Republic of China, seeks review of the July 14, 2010, decision

of the BIA denying his motion to reopen.   In re Liu Chun, No.

A072 483 923 (B.I.A. July 14, 2010).   We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

    The BIA’s denial of Chun’s motion to reopen as untimely

was not an abuse of discretion.    See Kaur v. BIA, 

, 233 (2d Cir. 2005) (per curiam) (We review the BIA’s

denial of a motion to reopen or reconsider for abuse of

discretion, which may be found where the BIA’s decision

“provides no rational explanation, inexplicably departs from

established policies, is devoid of any reasoning, or contains

only summary or conclusory statements; that is to say, where

the Board has acted in an arbitrary or capricious manner.”).

A motion to reopen generally must be filed no later than 90

days after the date on which the final administrative decision

was rendered in the proceedings sought to be reopened.      8


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U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is

no dispute that Chun’s 2009 motion was untimely and number-

barred, as the final administrative decision was issued in

1995, and it was his second motion to reopen.                See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).                However, the

time and number limitations do not apply to a motion to reopen

if it is “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 hearing.”      8 C.F.R. § 1003.2(c)(3)(ii); see also

8 U.S.C. § 1229a(c)(7)(C)(ii).            Chun contends that his Falun

Gong    activities   in   the    United    States   constitute    changed

circumstances.       As    the    BIA     noted,    Chun’s    Falun   Gong

activities, which he commenced in the United States in 2008,

reflect a self-induced change in personal circumstances, and

therefore do not exempt his motion from the applicable bars.

See Wei Guang Wang v. BIA, 

, 273-74 (2d Cir.

2006); Yuen Jin v. Mukasey, 

, 155 (2d Cir. 2008).

       Chun also argued before the BIA that conditions for Falun

Gong practitioners in China had deteriorated.                    Chun now

asserts that the BIA abused its discretion by “overlooking the


                                   -3-
material evidence which details China’s worsened conditions in

2008.”    However, the BIA referenced this evidence in its

decision, and its acknowledgment was sufficient. See Jian Hui

Shao v. Mukasey, 

, 169 (2d Cir. 2008) (noting that

the BIA does not need to expressly parse or refute every piece

of evidence submitted by the petitioner); Xiao Ji Chen v. U.S.

Dep’t of Justice, 

, 337 n.17 (2d Cir. 2006) (“we

presume that an IJ has taken into account all of the evidence

before   him,      unless       the   record       compellingly      suggests

otherwise.”).         Moreover, the BIA’s determination that the

evidence failed to demonstrate changed country conditions is

supported by substantial evidence.                 See Jian Hui 

(when the BIA considers relevant evidence of

country conditions in evaluating a motion to reopen, we review

the BIA’s factual findings under the substantial evidence

standard).      While the background materials submitted by Chun

show a general deterioration of human rights around the 2008

Beijing Olympics, and a continued repression of Falun Gong

practitioners,        there   is    nothing   to    show   a   worsening   of

conditions for Falun Gong practitioners in China in a way that

is material to Chun’s claim, particularly as the evidence is

not   focused    on    Chun’s      home   province    of   Fujian,    on   the


                                      -4-
persecution of individuals who practiced Falun Gong in the

United States, or on the level of persecution subsequent to

the Olympics.

    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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