Ke Ing Chen v. Holder , 363 F. App'x 131 ( 2010 )

09-0801-ag
Chen v. Holder
BIA
A070 012 126
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C IT AT IO N T O A SU M M A R Y O R D E R F IL E D O N O R A FT E R
J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 A N D T H IS C O U RT ’S L O CAL
R U L E 32.1.1. W H E N C ITIN G A SU M M AR Y O R D ER IN A D O CU M E N T FILE D W ITH T H IS C O U RT , A PAR TY M U ST C IT E E IT H E R TH E
F ED ER AL A P PE N D IX O R A N E L E C T R O N IC D A TA B ASE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A PAR TY C ITIN G A SU M M AR Y
O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .
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 2 nd day of February, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _________________________________________
12
13 KE ING CHEN, A.K.A. KE-YIN CHEN,
14 Petitioner,
15
16 v. 09-0801-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Ke Ing Chen, pro se, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Anh-Thu P. Mai-Windle,
28 Senior Litigation Counsel; Arthur L.
29 Rabin, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
1 Washington, D.C.
2
3 UPON DUE CONSIDERATION of this petition for review of a
4 Board of Immigration Appeals (“BIA”) decision, it is hereby
5 ORDERED, ADJUDGED, AND DECREED, that the petition for review
6 is DENIED.
7 Petitioner Ke Ing Chen, a native and citizen of the
8 People’s Republic of China, seeks review of a February 5,
9 2009 order of the BIA denying his motion to
10 reopen/reconsider. In re Ke Ing Chen a.k.a. Ke-Yin Chen,
11 No. A070 012 126 (B.I.A. Feb. 5, 2009). We assume the
12 parties’ familiarity with the underlying facts and
13 procedural history of this case.
14 We review the BIA’s denial of a motion to reopen and
15 reconsider for an abuse of discretion. See Kaur v. BIA, 413
16 F.3d 232, 233 (2d Cir. 2005) (per curiam). To the extent
17 that Chen challenges the BIA’s denial of his motion to
18 reconsider, the BIA reasonably denied the motion as
19 untimely, because it was undisputed that it was filed beyond
20 the 30 day deadline. See 8 C.F.R. § 1003.2(b)(2). With
21 regard to the BIA’s denial of Chen’s motion to reopen, we
22 conclude that the BIA did not abuse its discretion in
23 denying Chen’s motion to reopen as untimely and number-
2
1 barred. Chen’s order of deportation became final in April
2 1998, but he did not file his motion until August 2008, well
3 beyond the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2).
4 The motion to reopen was his sixth filed before the BIA.
5 See id.6 There is no time or numerical limit for filing a motion
7 to reopen “based on changed circumstances arising in the
8 country of nationality or in the country to which
9 deportation has been ordered, if such evidence is material
10 and was not available and could not have been discovered or
11 presented at the previous hearing.” 8 C.F.R.
12 § 1003.2(c)(3)(ii). Here, however, the BIA properly found
13 that Chen’s motion did not qualify for such an exception.
14 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
15 The BIA considered Chen’s evidence and reasonably
16 declined to give weight to the articles allegedly written by
17 Chen under a pseudonym in the United States. See Xiao Ji
18 Chen v. U.S. Dept’s of Justice, 471 F.3d 315, 342 (2d Cir.
19 2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,
20 130-31 (2d Cir. 2005). And the BIA did not err when it
21 found “not plausible” the claim that Chinese officials
22 required Chen’s wife to report monthly on Chen’s political
3
1 activities in the United States in the absence of any
2 written police order corroborating the claim. See Xiao Ji
3 Chen, 471 F.3d at 341. Furthermore, the BIA reasonably
4 noted that the background evidence submitted in support of
5 the motion did not reflect the treatment of persons
6 similarly situated to Chen. See Jian Gui Shao v. Mukasey,
7 546 F.3d 138, 160-61 (2d Cir. 2008). And the BIA reasonably
8 declined to credit Chen’s assertions and particularized
9 evidence based on the agency’s underlying adverse
10 credibility finding. See Qin Wen Zheng v. Gonzales, 500
11 F.3d 143, 146-47 (2d Cir. 2007).
12 Because the BIA did not err in finding that Chen failed
13 to demonstrate changed country conditions in China, it did
14 not abuse its discretion in denying his untimely and number-
15 barred motion to reopen/reconsider. Because Chen’s claim
16 for CAT relief was based on the same factual circumstance as
17 his claim for asylum and withholding of removal, the BIA did
18 not err in finding that he failed to meet his burden of
19 proof for reopening to apply for CAT protection. See Paul
20 v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
21 For the foregoing reasons, the petition for review is
22 DENIED. Having completed our review, the motion the Court
4
1 previously granted with respect to a stay of removal is
2 VACATED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
7
5