Filed: Aug. 27, 2015
Latest Update: Mar. 02, 2020
Summary: 13-1483 Chen v. Lynch BIA A078 853 767 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 “SUMMAR
Summary: 13-1483 Chen v. Lynch BIA A078 853 767 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..
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13-1483
Chen v. Lynch
BIA
A078 853 767
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 27th day of August, two thousand fifteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 SHU YU CHEN,
14 Petitioner,
15
16 v. 13-1483
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23
24 FOR PETITIONER: Thomas D. Barra, New York, New York.
25
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is
automatically substituted for former Attorney General
Eric H. Holder, Jr., as the Respondent in this case.
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Cindy S. Ferrier, Assistant
3 Director; Michele Y. F. Sarko,
4 Attorney, Civil Division, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Shu Yu Chen, a native and citizen of China,
14 seeks review of an April 1, 2013, decision of the BIA
15 denying her motion to reopen. In re Shu Yu Chen, No. A078
16 853 767 (B.I.A. Apr. 1, 2013). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 We review the BIA’s denial of a motion to reopen for
20 abuse of discretion, mindful that such motions are
21 “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
22 2006) (citing INS v. Doherty,
502 U.S. 314, 322-23 (1992)).
23 Aliens seeking to reopen proceedings may move to reopen no
24 later than 90 days after the final administrative decision
25 was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
26 § 1003.2(c)(2). However, this time limitation does not
2
1 apply if the motion is “based on changed country conditions
2 arising in the country of nationality or the country to
3 which removal has been ordered, if such evidence is material
4 and was not available and would not have been discovered or
5 presented at the previous proceedings.” 8 U.S.C.
6 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
7 Chen’s motion to reopen was untimely; she filed it in
8 2013, nearly nine years after the agency rendered its final
9 decision. The BIA determined that she failed to carry her
10 heavy burden of demonstrating material changed country
11 conditions that would excuse her delay. Specifically, the
12 agency concluded that Chen’s motion was predicated on a
13 change in her personal circumstances – converting to
14 Christianity and participating in demonstrations – rather
15 than a change in China. This was no abuse of discretion.
16 As this Court has made clear, “[a] self-induced change in
17 personal circumstances cannot suffice” to excuse an untimely
18 motion to reopen, particularly if the petitioner undertakes
19 those changes while under a final order of removal. Wei
20 Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006).
21 Chen asserts that the BIA ignored reports showing
22 changed country conditions for Falun Gong practitioners.
3
1 But the BIA considered those reports in finding that Chen is
2 not prima facie eligible for asylum because she failed to
3 satisfy her obligation to “make some showing that
4 authorities in [her] country of nationality are either aware
5 of [her] activities or likely to become aware of [her]
6 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
7 (2d Cir. 2008). Chen submitted reports on the Chinese
8 government’s practice of harvesting organs from Falun Gong
9 practitioners; she did not demonstrate that this practice
10 would impact her as a Falun Gong supporter. As a
11 consequence, the BIA reasonably concluded that Chen failed
12 to establish a sufficient ground for her claimed fear of
13 persecution.
14 Because we affirm the BIA’s conclusion that Chen failed
15 to establish prima facie eligibility for asylum, Chen’s
16 arguments that she is eligible for withholding of removal
17 and relief under the Convention Against Torture necessarily
18 also fail because those claims shared the same factual
19 predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
20 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
21 520, 523 (2d Cir. 2005). Accordingly, remand as to these
22 claims would be futile.
23
4
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
5
