holding that petitioner’s “Fa-lun Gong activities, which she commenced in the United States in 2009, reflect a self-induced change in personal circumstances, and therefore do not exempt her motion from the time limitation.”
How later courts described this case
- holding that petitioner’s “Fa-lun Gong activities, which she commenced in the United States in 2009, reflect a self-induced change in personal circumstances, and therefore do not exempt her motion from the time limitation.”
Written by the judges who cited it.
The opinion
10-4039-ag
Chen v. Holder
BIA
A077 997 454
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 30th day of November, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 YAN YUE CHEN, A.K.A. WAI SHAN CHAN,
14 Petitioner,
15
16 v. 10-4039-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Lee Ratner, of-counsel of Michael
24 Brown, Law Offices of Michael Brown,
25 New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Cindy S. Ferrier, Senior
29 Litigation Counsel; Michele Y. F.
30 Sarko, Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 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 Yan Yue Chen, a native and citizen of the
6 People’s Republic of China, seeks review of the September
7 27, 2010, decision of the BIA denying her motion to reopen.
8 In re Yan Yue Chen, No. A077 997 454 (B.I.A. Sept. 27,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 The BIA’s denial of Chen’s motion to reopen as untimely
12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005). A motion to reopen generally must
14 be filed no later than 90 days after the date on which the
15 final administrative decision was rendered in the
16 proceedings sought to be reopened. 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Chen’s 2010 motion was untimely, as the final
19 administrative decision was issued in 2005. The time
20 limitation does not apply to a motion to reopen if it is
21 “based on changed circumstances arising in the country of
22 nationality or in the country to which deportation has been
2
1 ordered, if such evidence is material and was not available
2 and could not have been discovered or presented at the
3 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see
4 8 U.S.C. § 1229a(c)(7)(C)(ii). However, the BIA did not
5 abuse its discretion in finding that Chen failed to
6 establish changed circumstances in China.
7 Chen contends that her Falun Gong activities in the
8 United States constitute changed circumstances. As the BIA
9 noted, Chen’s Falun Gong activities, which she commenced in
10 the United States in 2009, reflect a self-induced change in
11 personal circumstances, and therefore do not exempt her
12 motion from the time limitation. See Wei Guang Wang v. BIA,
13 437 F.3d 270, 273-74 (2d Cir. 2006). Chen also argues that
14 she demonstrated changed country conditions by submitting
15 evidence showing that conditions in China had deteriorated
16 for Falun Gong practitioners. However, the BIA’s
17 determination that the evidence failed to demonstrate
18 changed country conditions since Chen’s 2004 hearing is
19 supported by substantial evidence. See Jian Hui Shao v.
20 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Matter of S-Y-G-,
21 24 I. & N. Dec. 247, 253 (BIA 2007). The only background
22 materials Chen submitted relating to conditions in China for
3
1 Falun Gong practitioners was a 2007 United States Department
2 of State Profile of Asylum Claims and Country Conditions for
3 China, which indicated that “[t]he government has continued
4 to wage a severe campaign against Falun Gong,” and not that
5 conditions had changed.
6 Finally, Chen argues that she demonstrated changed
7 country conditions based on her submission of an affidavit
8 from her father and an unauthenticated village committee
9 notice, both of which indicated that Chinese government
10 officials had learned of her practice of Falun Gong and that
11 she would be subject to “severe punishment” for practicing
12 Falun Gong in the United States upon her return to China.
13 The BIA’s determination that this evidence was of little
14 probative value is entitled to deference, particularly in
15 light of the agency’s prior finding that Chen was not
16 credible. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148-
17 49 (2d Cir. 2007) (holding that the BIA did not abuse its
18 discretion in discrediting a purported village notice where
19 the document was not authenticated and the alien had been
20 found not credible by the IJ); see also Xiao Ji Chen v. U.S.
21 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding
22 that the weight afforded to an applicant’s evidence in
23 immigration proceedings “lies largely within the discretion”
24 of the agency (internal quotation marks omitted)).
4
1 Because the evidence Chen submitted was insufficient to
2 establish a change in country conditions, the BIA did not
3 abuse its discretion in concluding that she failed to meet
4 an exception to the filing deadline, and, accordingly, in
5 denying her motion to reopen. See 8 U.S.C.
6 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of
9 removal that the Court previously granted in this petition
10 is VACATED, and any pending motion for a stay of removal in
11 this petition is DISMISSED as moot. Any pending request for
12 oral argument in this petition is DENIED in accordance with
13 Federal Rule of Appellate Procedure 34(a)(2), and Second
14 Circuit Local Rule 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
5