         12-2995
         Chen v. Holder
                                                                                         BIA
                                                                                    Videla, IJ
                                                                                 A079 089 995
                           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 14th day of November, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT D. SACK,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _________________________________________
12
13       ZHI YU CHEN,
14                Petitioner,
15
16                        v.                                       12-2995
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Joshua E. Bardavid, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
27                                      Attorney General; Anthony P.
28                                      Nicastro, Senior Litigation Counsel;
29                                      Jeffery R. Leist, Trial Attorney,
 1                          Office of Immigration Litigation,
 2                          United States Department of Justice,
 3                          Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Petitioner Zhi Yu Chen, a native and citizen of the

10   People’s Republic of China, seeks review of the June 27,

11   2012, decision of the BIA affirming a January 27, 2011,

12   decision of Immigration Judge (“IJ”) Gabriel C. Videla

13   denying her motion to reopen.       In re Zhi Yu Chen, No. A079

14   089 995 (B.I.A. June 27, 2012), aff’g No. A079 089 995

15   (Immig. Ct. New York City Jan. 27, 2011).      We assume the

16   parties’ familiarity with the underlying facts and

17   procedural history of the case.      Because Chen does not

18   challenge the denial of sua sponte reopening, we address

19   only the denial of statutory reopening.

20       The BIA’s denial of Chen’s motion to reopen as untimely

21   was not an abuse of discretion.       See Kaur v. BIA, 413 F.3d

22   232, 233 (2d Cir. 2005) (per curiam).      An alien may file one

23   motion to reopen, generally no later than 90 days after the

24   date on which the final administrative decision was rendered


                                     2
 1   in the proceedings sought to be reopened.    8 U.S.C.

 2   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).       There is

 3   no dispute that Chen’s 2010 motion was untimely, as her

 4   final administrative order was issued in 2002.    See 8 U.S.C.

 5   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    The time

 6   limitation does not apply to a motion to reopen “based on

 7   changed circumstances arising in the country of nationality

 8   or in the country to which deportation has been ordered, if

 9   such evidence is material and was not available and could

10   not have been discovered or presented at the previous

11   hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also

12   8 U.S.C. § 1229a(c)(7)(C)(ii).    Here, as the BIA concluded,

13   Chen failed to establish a material change in circumstances

14   for house church Christians in China.

15       Chen argues that she demonstrated an increased risk of

16   persecution based on China’s crackdown on underground

17   Christian churches since her 2002 merits hearing.       The BIA’s

18   determination that Chen failed to demonstrate changed

19   circumstances in China is supported by substantial evidence.

20   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

21   2008).   While a 2010 report from the U.S. Commission on

22   International Religious Freedom notes an increase in the


                                   3
 1   harassment of house church Christians prior to and during

 2   the 2008 Beijing Olympics, it notes a decrease in the number

 3   of detentions the next year, and that the Chinese government

 4   then continued its systematic and intense suppression of

 5   house churches.   Indeed, contrary to Chen’s argument, the

 6   repressive tactics described in the 2010 report and

 7   supplementary post-hearing evidence, including church raids,

 8   the arrest and detention of house church members, and the

 9   confiscation and destruction of property, also were

10   described in the 1999 U.S. State Department report that Chen

11   submitted at her merits hearing.   Substantial evidence

12   therefore supports the BIA’s finding that Chen did not

13   establish changed conditions for Christians in China.

14       Because the evidence Chen submitted was insufficient to

15   establish a change in conditions in China, the BIA did not

16   abuse its discretion in concluding that she failed to meet

17   an exception to the filing deadline, and in consequently

18   denying her motion to reopen as untimely.   See 8 U.S.C.

19   § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).

20       For the foregoing reasons, the petition for review is

21   DENIED.

22                               FOR THE COURT:
23                               Catherine O’Hagan Wolfe, Clerk




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