482 F. App'x 654
2d Cir.
2012
Case Information

*1 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.

At а 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 Nеw York, on the 29 th day of May, two thousand twelve.

PRESENT:

JOHN M. WALKER, JR.,

ROBERT D. SACK,

REENA RAGGI,

Circuit Judges .

_________________________________________

WEN HUI CHEN,

Petitioner , v. 10-5126-ag

NAC ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent .

_________________________________________

FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

York. FOR RESPONDENT: Tony West, Assistant Attorney

General; Terri J. Scadron, Assistant Director; Office of Immigration Litigation; Shahrzad Baghai, Trial ‍‌​‌​​‌‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‍Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review оf a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition fоr review is DENIED.

Petitioner Wen Hui Chen, a native and citizen of the People’s Republic of China, seeks review of a November 24, 2010, order of the BIA denying her motion tо reopen. In re Wen Hui Chen , No. A073 561 088 (B.I.A. Nov. 24, 2010). We assume the parties’ familiarity ‍‌​‌​​‌‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‍with the underlying facts and procedural history in this case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006). The agency’s regulations permit an alien seeking to reopen proceedings to file one motion to reopen no later than 90 days after the date on which the final administrative deсision was rendered. See

8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). It is undisputed that Chen’s August 2008 motion to reopen was untimеly because the Immigration Judge (“IJ”) issued a final ‍‌​‌​​‌‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‍order of removal in July 1996. However, there are no limitations for filing a motion to reopen if it is “based on changеd circumstances arising in the country of nationality *3 or in the country to which deрortation 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).

Here, the BIA reasonably found that Chen failed to demonstrate a change in country conditions, and merely established a change in her personal circumstances, with regard to her membership in the Chinesе Democracy Party (“CDP”). It is well-settled that changed personal circumstanсes are distinguishable from changed country conditions. See Wei Guang Wang v. BIA , 437 F.3d 270, 273- 274 (2d Cir. 2006) (“The law is clear that a petitioner must show changed country conditions ‍‌​‌​​‌‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‍in order to exceed the 90- day filing requirement for seeking to reopen removal proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). A self-induced change in personal circumstances cannot suffice.”); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per curiam) (holding that a change in personal circumstances, namely the birth of a child in the United States, does not fit under the changed circumstances exception provided by 8 C.F.R. § 1003.2(c)(3)(ii)); see also *4 Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003) (noting that the birth of petitioner’s two children in the Unitеd States following an order of deportation does not amount to chаnged country conditions). In support of her motion, Chen submitted evidence of hеr activities with the CDP, including articles she published criticizing the Chinese government and an affidavit ‍‌​‌​​‌‌​‌​​​​‌‌​‌‌​​​​‌‌​​​​​​‌‌‌​‌​‌‌‌‌‌​‌​​​‌​‍of a party member stating that CDP members had been harmed upon their rеturn from the United States to China. Chen asserts that the BIA failed to consider this evidence, which she claims shows a change in country conditions because “Chinesе authorities are aware or likely to become aware of her рolitical activities.”

Chen’s evidence fails to demonstrate a materiаl change in country conditions in the Chinese government’s treatment of CDP members sinсe the time of Chen’s hearing before the IJ. See Norani v. Gonzales , 451 F.3d 292, 294 & n.3 (2d Cir. 2006) (looking to the date on which the IJ сlosed the record as the date before which the evidence must have been unavailable, undiscoverable, or unpresentable). Thus, the BIA’s determinаtion that Chen’s motion to reopen was untimely and did not demonstrate a change in country conditions was not an abuse of discretion.

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 mоtion 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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