concluding that the ALJ’s RFC finding was supported by substantial evidence including activities of daily living
How later courts described this case
- concluding that the ALJ’s RFC finding was supported by substantial evidence including activities of daily living
Written by the judges who cited it.
The opinion
12-2407
Chen v. Holder
BIA
A072 745 900
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of December, two thousand thirteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 XIE JIAN CHEN,
14 Petitioner,
15
16 v. 12-2407
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Leslie McKay,
28 Assistant Director; Ilissa M. Gould,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Xie Jian Chen, a native and citizen of
6 China, seeks review of a May 29, 2012 decision of the BIA
7 denying his motion to reopen his removal proceedings. In re
8 Xie Jian Chen, No. A072 745 900 (B.I.A. May 29, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history in this 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) (per curiam). An alien seeking to reopen
14 proceedings must file a motion to reopen no later than 90
15 days after the date on which the final administrative
16 decision was rendered. See 8 U.S.C. § 1229a(c)(7)(C); 8
17 C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s
18 motion to reopen, filed in 2011, was untimely, because the
19 BIA issued a final order of removal in Chen’s case in 2002.
20 Chen contends, however, that he has established
21 materially changed country conditions excusing his untimely
22 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
23 Chen’s argument that reopening is warranted based on
2
1 generally worsening country conditions for Christians in
2 China is unexhausted because he did not raise it before the
3 BIA. We therefore decline to consider it. Cf. Lin Zhong v.
4 U.S. Dep’t of Justice, 480 F.3d 104, 120 (2d Cir. 2007).
5 Chen also alleges that the Chinese government recently
6 intercepted mail to his parents containing Chen’s criticism
7 of the government’s treatment of Christians, and that as a
8 result, village officials visited his parents’ house and
9 issued a notice ordering him to report for punishment. The
10 BIA did not abuse its discretion in finding that Chen did
11 not establish materially changed country conditions on this
12 basis, as the BIA did not err in giving little evidentiary
13 weight to the documents Chen submitted in support of his
14 motion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
15 Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
16 315, 342 (2d Cir. 2006) (holding that the weight accorded to
17 evidence lies largely within the agency’s discretion). The
18 BIA did not abuse its discretion in declining fully to
19 credit handwritten documents from China that were not
20 notarized or authenticated by any means, or affidavits that
21 were not based on first-hand knowledge, or in rejecting
22 Chen’s arguments that he should not be required to
3
1 authenticate the documents. See Xiao Ji Chen, 471 F.3d at
2 341-42; Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir.
3 2008).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, the pending motion
6 for a stay of removal in this petition is DISMISSED as moot.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
4