Filed: May 29, 2012
Latest Update: Feb. 12, 2020
Summary: 10-5126-ag Chen v. Holder BIA A073 561 088 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: 10-5126-ag Chen v. Holder BIA A073 561 088 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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10-5126-ag
Chen v. Holder
BIA
A073 561 088
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 WEN HUI CHEN,
14 Petitioner,
15
16 v. 10-5126-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Office of Immigration
29 Litigation; Shahrzad Baghai, Trial
30 Attorney, Office of Immigration
31 Litigation, United States Department
32 of Justice, 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 Wen Hui Chen, a native and citizen of the
6 People’s Republic of China, seeks review of a November 24,
7 2010, order of the BIA denying her motion to reopen. In re
8 Wen Hui Chen, No. A073 561 088 (B.I.A. Nov. 24, 2010). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). The agency’s regulations permit an alien
14 seeking to reopen proceedings to file one motion to reopen
15 no later than 90 days after the date on which the final
16 administrative decision was rendered. See
17 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). It
18 is undisputed that Chen’s August 2008 motion to reopen was
19 untimely because the Immigration Judge (“IJ”) issued a final
20 order of removal in July 1996. However, there are no
21 limitations for filing a motion to reopen if it is “based on
22 changed circumstances arising in the country of nationality
2
1 or in the country to which deportation has been ordered, if
2 such evidence is material and was not available and could
3 not have been discovered or presented at the previous
4 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also
5 8 U.S.C. § 1229a(c)(7)(C)(ii).
6 Here, the BIA reasonably found that Chen failed to
7 demonstrate a change in country conditions, and merely
8 established a change in her personal circumstances, with
9 regard to her membership in the Chinese Democracy Party
10 (“CDP”). It is well-settled that changed personal
11 circumstances are distinguishable from changed country
12 conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-
13 274 (2d Cir. 2006) (“The law is clear that a petitioner must
14 show changed country conditions in order to exceed the 90-
15 day filing requirement for seeking to reopen removal
16 proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). A self-induced
17 change in personal circumstances cannot suffice.”); Li Yong
18 Zheng v. U.S. Dep’t of Justice,
416 F.3d 129, 130-31 (2d
19 Cir. 2005) (per curiam) (holding that a change in personal
20 circumstances, namely the birth of a child in the United
21 States, does not fit under the changed circumstances
22 exception provided by 8 C.F.R. § 1003.2(c)(3)(ii)); see also
3
1 Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003)
2 (noting that the birth of petitioner’s two children in the
3 United States following an order of deportation does not
4 amount to changed country conditions). In support of her
5 motion, Chen submitted evidence of her activities with the
6 CDP, including articles she published criticizing the
7 Chinese government and an affidavit of a party member
8 stating that CDP members had been harmed upon their return
9 from the United States to China. Chen asserts that the BIA
10 failed to consider this evidence, which she claims shows a
11 change in country conditions because “Chinese authorities
12 are aware or likely to become aware of her political
13 activities.”
14 Chen’s evidence fails to demonstrate a material change
15 in country conditions in the Chinese government’s treatment
16 of CDP members since the time of Chen’s hearing before the
17 IJ. See Norani v. Gonzales,
451 F.3d 292, 294 & n.3 (2d
18 Cir. 2006) (looking to the date on which the IJ closed the
19 record as the date before which the evidence must have been
20 unavailable, undiscoverable, or unpresentable). Thus, the
21 BIA’s determination that Chen’s motion to reopen was
22 untimely and did not demonstrate a change in country
23 conditions was not an abuse of discretion.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
5
