Zhi Feng Chen v. Holder , 426 F. App'x 28 ( 2011 )

10-3501-ag
Chen v. Holder
BIA
A077 657 953
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 27th day of July, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _______________________________________
12
13 ZHI FENG CHEN,
14 Petitioner,
15
16 v. 10-3501-ag
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Linda S. Wernery, Assistant
29 Director; Kerry A. Monaco, Trial
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Zhi Feng Chen, a native and citizen of the People’s
6 Republic of China, seeks review of an August 10, 2010, order
7 of the BIA denying his motion to reopen his removal
8 proceedings. In re Zhi Feng Chen, No. A077 657 953 (B.I.A.
9 Aug. 10, 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA did not abuse its discretion by denying Chen’s
17 motion to reopen as untimely, as he filed it more than three
18 years after his final order of removal. See id.; 8 C.F.R.
19 § 1003.2(c)(2).
20 Although the time limits on motions to reopen may be
21 excused when the movant demonstrates changed country
22 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
2
1 reasonably concluded that only Chen’s personal circumstances
2 had changed, as his claim was based on the fact that he
3 converted to Christianity and joined the Church of Jesus
4 Christ of Latter-Day Saints (“LDS”) in 2009. Aliens who
5 have been ordered removed cannot “disregard [those] orders
6 and remain in the United States long enough to change their
7 personal circumstances (e.g., by having children or
8 practicing a persecuted religion) and initiate new
9 proceedings via a new asylum application.” Yuen Jin v.
10 Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008).
11 Even if Chen's petition was not, in fact, based on
12 changed personal circumstances, substantial evidence
13 supports the BIA’s conclusion that Chen failed to show a
14 material change in country conditions. Chen would then have
15 been required to demonstrate how country conditions had
16 changed since the time of his merits hearing. See Matter of
17 S-Y-G-, 24 I. & N. Dec 247, 253 (BIA 2007). As the BIA
18 found, Chen’s evidence -- documentation of his conversion,
19 his marriage certificate, pictures, a letter from an LDS
20 stake president, the 2003, 2008, and 2009 State Department
21 Country Reports on China, the 2008 International Religious
22 Freedom Report on China, and a number of articles on LDS
3
1 activities in China and other Asian countries -- did not
2 demonstrate that the Chinese government is punishing LDS
3 members more harshly now than at the time of his hearing.
4 Although the evidence indicated that repression of religion
5 increased during the 2008 Olympics, the evidence also
6 indicated that “freedom to participate in religious
7 activities continued to increase in many areas.”
8 Accordingly, the BIA reasonably determined that, Chen failed
9 to establish that conditions in China had materially changed
10 so as to warrant reopening, and the BIA did not abuse its
11 discretion in denying his motion. See 8 C.F.R.
12 § 1003.2(c)(2), (c)(3)(ii); see also Siewe v. Gonzales, 480
13 F.3d 160, 167 (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of
14 Justice, 471 F.3d 315, 342 (2d Cir. 2006).
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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