Filed: Nov. 15, 2016
Latest Update: Mar. 03, 2020
Summary: 15-2251 Chen-Chen v. Lynch BIA A098 994 718 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 “S
Summary: 15-2251 Chen-Chen v. Lynch BIA A098 994 718 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..
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15-2251
Chen-Chen v. Lynch
BIA
A098 994 718
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of November, two thousand sixteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FEN YIN CHEN-CHEN,
14 Petitioner,
15
16 v. 15-2251
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Donglai Yang, New Orleans, LA.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Douglas
27 E. Ginsburg, Assistant Director;
28 Benjamin Mark Moss, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
32
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 is
4 DENIED.
5 Petitioner Fen Yin Chen-Chen, a native and citizen of
6 China, seeks review of a June 30, 2015 decision of the BIA
7 denying his motion to reopen. In re Fen Yin Chen-Chen, No. A098
8 994 718 (B.I.A. June 30, 2015). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 in this case.
11 We review the denial of a motion to reopen for abuse of
12 discretion, and review any factual findings regarding country
13 conditions for substantial evidence. Jian Hui Shao v. Mukasey,
14 546 F.3d 138, 168-69 (2d Cir. 2008). An alien seeking to reopen
15 proceedings may file one motion to reopen no later than ninety
16 days after the date on which the final administrative decision
17 was rendered. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
18 § 1003.2(c)(2). It is undisputed that Chen-Chen’s 2015 motion
19 to reopen was untimely and number barred because it was his third
20 motion to reopen and was filed seven years after his order of
21 removal became final in 2008. See 8 U.S.C. § 1229a(c)(7)(A),
22 (C)(i); 8 C.F.R. § 1003.2(c)(2).
2
1 These time and number limitations do not apply if reopening
2 is requested to apply for asylum “based on changed country
3 conditions arising in the country of nationality or the country
4 to which removal has been ordered, if such evidence is material
5 and was not available and would not have been discovered or
6 presented at the previous proceedings.” 8 U.S.C.
7 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3).
8 However, Chen-Chen has abandoned any challenge to the BIA’s
9 dispositive determination that there was no evidence of changed
10 conditions in his region of China. See Jian Hui Shao, 546 F.3d
11 at 142, 149, 169-72 (finding no error in the BIA’s evidentiary
12 framework requiring an applicant to demonstrate that similarly
13 situated individuals face persecution in his or her local area
14 when enforcement varies by region). Chen-Chen’s brief devotes
15 little space to changed conditions, asserting only that a State
16 Department report from 2011 shows “abuse on a massive scale,”
17 from which a “clear inference” can be drawn that “conditions
18 . . . have deteriorated drastically.” Because Chen-Chen does
19 not explain how country conditions have materially worsened in
20 Fuzhou City or Fujian Province, he has abandoned the dispositive
21 issue. See Yueqing Zhang v. Gonzales,
426 F.3d 540, 545 n.7
22 (2d Cir. 2005) (providing that issues not raised in an opening
23 brief are abandoned).
3
1 In any event, the BIA did not abuse its discretion.
2 Chen-Chen was required to show evidence of a change in
3 conditions in China that was not available at the time of his
4 hearing. See 8 U.S.C. § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24
5 I. & N. Dec. 247, 253 (BIA 2007). He did not. The evidence
6 reflects that China has been a country of concern with respect
7 to religious freedom since at least 1999, and that concern
8 continues. Moreover, the BIA reasonably required evidence
9 specific to Chen-Chen’s region of China given evidence in the
10 record that religious groups are tolerated in some areas.
11 See Jian Hui Shao, 546 F.3d at 169-72. Chen-Chen did not
12 present any evidence specific to Fujian Province and,
13 therefore, did not show a material change excusing the time and
14 number limitations.
15 Chen-Chen additionally argues that the BIA erred by failing
16 to reopen his proceedings sua sponte. Although the BIA may
17 reopen proceedings sua sponte despite the time and number
18 limitations, see 8 C.F.R. § 1003.2(a), we lack jurisdiction to
19 review the “entirely discretionary” decision not to exercise
20 that authority, Ali v. Gonzales,
448 F.3d 515, 518 (2d Cir.
21 2006).
22 Finally, Chen-Chen’s arguments in his brief relating to
23 persecution based on China’s family planning policy are not
4
1 reviewable—his motion to reopen was based on religious
2 persecution and he may not now revisit his original asylum
3 application. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
4 F.3d 83, 89-90 (2d Cir. 2001) (explaining that when, as here,
5 a petition is timely only as to the denial of a motion, review
6 is limited to that denial).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DENIED as moot. Any pending request for oral argument in
12 this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
5
