     15-2251
     Chen-Chen v. Lynch
                                                                                       BIA
                                                                               A098 994 718
                           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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of November, two thousand sixteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            DENNY CHIN,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   FEN YIN CHEN-CHEN,
14            Petitioner,
15
16                    v.                                             15-2251
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Donglai Yang, New Orleans, LA.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Douglas
27                                       E. Ginsburg, Assistant Director;
28                                       Benjamin Mark Moss, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, DC.
32
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 is

4    DENIED.

5        Petitioner Fen Yin Chen-Chen, a native and citizen of

6    China, seeks review of a June 30, 2015 decision of the BIA

7    denying his motion to reopen.   In re Fen Yin Chen-Chen, No. A098

8    994 718 (B.I.A. June 30, 2015).        We assume the parties’

9    familiarity with the underlying facts and procedural history

10   in this case.

11       We review the denial of a motion to reopen for abuse of

12   discretion, and review any factual findings regarding country

13   conditions for substantial evidence.    Jian Hui Shao v. Mukasey,

14   546 F.3d 138, 168-69 (2d Cir. 2008).   An alien seeking to reopen

15   proceedings may file one motion to reopen no later than ninety

16   days after the date on which the final administrative decision

17   was rendered.     8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

18   § 1003.2(c)(2).    It is undisputed that Chen-Chen’s 2015 motion

19   to reopen was untimely and number barred because it was his third

20   motion to reopen and was filed seven years after his order of

21   removal became final in 2008.    See 8 U.S.C. § 1229a(c)(7)(A),

22   (C)(i); 8 C.F.R. § 1003.2(c)(2).


                                     2
1        These time and number limitations do not apply if reopening

2    is requested to apply for asylum “based on changed country

3    conditions arising in the country of nationality or the country

4    to which removal has been ordered, if such evidence is material

5    and was not available and would not have been discovered or

6    presented   at   the    previous     proceedings.”        8   U.S.C.

7    § 1229a(c)(7)(C)(ii);   see   also   8    C.F.R.   §   1003.2(c)(3).

8    However, Chen-Chen has abandoned any challenge to the BIA’s

9    dispositive determination that there was no evidence of changed

10   conditions in his region of China.       See Jian Hui Shao, 546 F.3d

11   at 142, 149, 169-72 (finding no error in the BIA’s evidentiary

12   framework requiring an applicant to demonstrate that similarly

13   situated individuals face persecution in his or her local area

14   when enforcement varies by region).       Chen-Chen’s brief devotes

15   little space to changed conditions, asserting only that a State

16   Department report from 2011 shows “abuse on a massive scale,”

17   from which a “clear inference” can be drawn that “conditions

18   . . . have deteriorated drastically.”        Because Chen-Chen does

19   not explain how country conditions have materially worsened in

20   Fuzhou City or Fujian Province, he has abandoned the dispositive

21   issue.   See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7

22   (2d Cir. 2005) (providing that issues not raised in an opening

23   brief are abandoned).
                                     3
1        In any event, the BIA did not abuse its discretion.

2    Chen-Chen was required to show evidence of a change in

3    conditions in China that was not available at the time of his

4    hearing.    See 8 U.S.C. § 1229a(c)(7)(C)(ii); In re S-Y-G-, 24

5    I. & N. Dec. 247, 253 (BIA 2007).       He did not.    The evidence

6    reflects that China has been a country of concern with respect

7    to religious freedom since at least 1999, and that concern

8    continues.       Moreover, the BIA reasonably required evidence

9    specific to Chen-Chen’s region of China given evidence in the

10   record that religious groups are tolerated in some areas.

11   See Jian Hui Shao, 546 F.3d at 169-72.           Chen-Chen did not

12   present    any    evidence   specific   to   Fujian   Province   and,

13   therefore, did not show a material change excusing the time and

14   number limitations.

15       Chen-Chen additionally argues that the BIA erred by failing

16   to reopen his proceedings sua sponte.         Although the BIA may

17   reopen proceedings sua sponte despite the time and number

18   limitations, see 8 C.F.R. § 1003.2(a), we lack jurisdiction to

19   review the “entirely discretionary” decision not to exercise

20   that authority, Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

21   2006).

22       Finally, Chen-Chen’s arguments in his brief relating to

23   persecution based on China’s family planning policy are not
                                       4
1    reviewable—his   motion   to   reopen   was   based   on   religious

2    persecution and he may not now revisit his original asylum

3    application.    See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

4    F.3d 83, 89-90 (2d Cir. 2001) (explaining that when, as here,

5    a petition is timely only as to the denial of a motion, review

6    is limited to that denial).

7        For the foregoing reasons, the petition for review is

8    DENIED.    As we have completed our review, any stay of removal

9    that the Court previously granted in this petition is VACATED,

10   and any pending motion for a stay of removal in this petition

11   is DENIED as moot.    Any pending request for oral argument in

12   this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                  FOR THE COURT:
16                                  Catherine O’Hagan Wolfe, Clerk




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