Chun Yong Chen v. Holder , 452 F. App'x 68 ( 2012 )

11-1538-ag
Chen v. Holder
BIA
A073 575 989
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 9th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 CHUN YONG CHEN,
15 Petitioner,
16
17 v. 11-1538-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Charles Christophe, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony P. Nicastro, Senior
29 Litigation Counsel; Andrew N.
30 O’Malley, Trial Attorney, Office of
31 Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Chun Yong Chen, a native and citizen of the People’s
9 Republic of China, seeks review of a March 25, 2011, order
10 of the BIA denying his motion to reopen. In re Chun Yong
11 Chen, No. A073 575 989 (B.I.A. Mar. 25, 2011). We assume
12 the parties’ familiarity with the underlying facts and
13 procedural history of the case.
14 We have reviewed the agency’s denial of Chen’s motion
15 to reopen for abuse of discretion. Kaur v. BIA, 413 F.3d
16 232, 233 (2d Cir. 2005) (per curiam).
17 Because Chen’s motion to reopen was untimely, he was
18 required to establish changed country conditions. See 8
19 U.S.C. § 1229a(c)(7)(C). Chen presented the agency with
20 evidence describing the persecution of Christians in China
21 from 2008 to 2010, but he did not present the BIA with any
22 evidence about conditions for Christians in China in 1996,
23 the time of his original merits hearing. In evaluating
24 evidence of changed country conditions, the BIA “compare[s]
2
1 the evidence of country conditions submitted with the motion
2 to those that existed at the time of the merits hearing
3 below.” Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA
4 2007). Accordingly, because Chen did not in 2010 present
5 the BIA with any evidence about conditions in China in 1996,
6 the BIA reasonably concluded that he failed to demonstrate a
7 change in conditions that would justify reopening. See id.;
8 accord Moosa v. Holder, 644 F.3d 380, 386-87 (7th Cir. 2011)
9 (upholding BIA’s finding that applicant had not established
10 changed country conditions because she did not present
11 evidence about conditions in Pakistan as they had existed at
12 the time of her 2001 merits hearing to provide a “baseline
13 for comparison” and thus did not establish that there had
14 been a change in the influence of the Taliban since that
15 time). Because the BIA reasonably concluded that Chen did
16 not establish a change in country conditions, it did not
17 abuse its discretion by denying his motion to reopen as
18 untimely. See 8 U.S.C. § 1229a(c)(7)(C).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any pending motion
21 for a stay of removal in this petition is DISMISSED as moot.
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
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