         11-629-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A096 790 332
                            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 31st day of January, two thousand twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JIE CHEN,
14                        Petitioner,
15
16                        v.                                    11-629-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 Dehai Zhang, Flushing, New York.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General; Terri J. Scadron, Assistant
27                                       Director; Sarone Solomon, Legal
28                                       Intern, Office of Immigration
29                                       Litigation, United States Department
30                                       of Justice, 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 Jie Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of a January 21,

 7   2011, decision of the BIA denying her motion to reopen her

 8   removal proceedings.     In re Jie Chen, No. A096 790 332

 9   (B.I.A. Jan. 21, 2011).     We assume the parties’ familiarity

10   with the underlying facts and procedural history in this

11   case.

12       We review the BIA’s denial of a motion to reopen for

13   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

14   (2d Cir. 2006).    An alien seeking to reopen proceedings is

15   required to file a motion to reopen no later than 90 days

16   after the date on which the final administrative decision

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

18   § 1003.2(c)(2).    There is no dispute that Chen’s motion to

19   reopen, filed in April 2010, was untimely because the BIA

20   issued a final order of removal in August 2009.     See

21   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

22       Chen contends, however, that a crackdown on democracy

23   activists in China and the Chinese government’s awareness of

                                     2
 1   her Chinese Democracy Party (“CDP”) activities in the United

 2   States constitutes changed circumstances, excusing the

 3   untimeliness of her motion to reopen.     See 8 U.S.C.

 4   § 1229a(c)(7)(C)(ii).   As the BIA reasonably noted, however,

 5   Chen failed to show changed country conditions with respect

 6   to the Chinese government’s treatment of democracy activists

 7   because the evidence submitted during Chen’s original

 8   hearing showed that China’s crackdown against its political

 9   opponents and persecution of CDP members was continuing.

10   See 8 C.F.R. § 1003.2(c)(3)(ii); In re S-Y-G-, 24 I. & N.

11   Dec. 247, 253 (B.I.A. 2007).   Moreover, the BIA reasonably

12   determined that Chen failed to offer any material evidence

13   in support of her claim of changed country conditions

14   because, as the BIA noted, Chen did “not submit[] any new

15   evidence or argument sufficient to overcome the prior

16   adverse credibility determination.”     See Kaur v. BIA, 413

17   F.3d 232, 234 (2d Cir. 2005) (per curiam).

18       Although Chen argues that the BIA ignored her summons,

19   fathers’ letters, and siblings’ affidavits, the record does

20   not compellingly suggest that the BIA failed to consider any

21   evidence.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 159

22   (2d Cir. 2008).   Indeed, the BIA explicitly considered


                                    3
 1   Chen’s evidence, and reasonably noted that Chen’s father’s

 2   letters and siblings’ affidavits were from interested

 3   witnesses not subject to cross examination, and that Chen’s

 4   summons was not authenticated and failed to indicate any

 5   awareness by Chinese officials of her presence in the United

 6   States.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

 7   315, 342 (2d Cir. 2006).     Further, the BIA reasonably relied

 8   on the prior adverse credibility determination in declining

 9   to credit Chen’s evidence.     See Qin Wen Zheng v. Gonzales,

10   500 F.3d 143, 146-49 (2d Cir. 2007).

11       Because the BIA reasonably concluded that Chen did not

12   demonstrate a material change in country conditions in

13   China, it did not abuse its discretion by denying her motion

14   to reopen as untimely.     See 8 U.S.C.

15   § 1229a(c)(7)(C)(i), (ii).     Because the motion was untimely,

16   we decline to address Chen’s claim that she established her

17   prima facie eligibility for relief.

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot. Any pending request for


                                     4
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




                                   5
