482 F. App'x 654
2d Cir.2012Background
- Chen, a native and citizen of the People’s Republic of China, seeks review of a BIA order denying her motion to reopen (Nov. 24, 2010).
- Chen’s August 2008 motion to reopen was untimely because the IJ rendered a final removal order in July 1996.
- The Government concedes untimeliness but addresses whether a change in country conditions excused the delay.
- The motion to reopen must show a change in country conditions to be timely under 8 C.F.R. § 1003.2(c)(3)(ii).
- Chen submitted evidence of CDP activities and statements she published; an affidavit claimed CDP members were harmed abroad.
- The BIA found no material change in country conditions and thus denied reopening as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chen showed a change in country conditions to excuse the untimely filing | Chen argues evidence shows worsening CDP conditions. | Holder contends evidence does not prove changed country conditions. | No material change in country conditions; untimely filing not excused. |
| Whether changes in Chen’s personal circumstances can overcome the 90-day filing rule | Chen’s CDP involvement reflects changed conditions. | Changed personal circumstances do not satisfy §1003.2(c)(3)(ii). | Changed personal circumstances do not excuse untimeliness. |
| Whether the BIA reasonably evaluated Chen’s evidence of country conditions | Chen contends BIA ignored evidence of CDP impact. | BIA reasonably acknowledged evidence but found no material change. | BIA’s evaluation was not an abuse of discretion. |
| Whether the record supports a finding of a material change in country conditions since the IJ’s decision | Evidence shows potential government awareness of political activity. | Evidence does not establish a material change since the hearing date. | No material country-condition change established. |
Key Cases Cited
- Wei Guang Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (changed country conditions required for reopening under 8 C.F.R. § 1003.2(c)(3)(ii))
- Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129 (2d Cir. 2005) (birth of a child in the U.S. not a country-condition change)
- Jian Huan Guan v. BIA, 345 F.3d 47 (2d Cir. 2003) (birth of two children in U.S. not a changed country condition)
- Norani v. Gonzales, 451 F.3d 292 (2d Cir. 2006) (date of IJ record closing governs evidence availability)
- Ali v. Gonzales, 448 F.3d 515 (2d Cir. 2006) (standard for abuse of discretion in denial of motion to reopen)