         13-1483
         Chen v. Lynch
                                                                                       BIA
                                                                               A078 853 767
                              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 27th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       SHU YU CHEN,
14                Petitioner,
15
16                           v.                                 13-1483
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _____________________________________
22
23
24       FOR PETITIONER:               Thomas D. Barra, New York, New York.
25


                         *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is
             automatically substituted for former Attorney General
             Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:           Stuart F. Delery, Assistant Attorney
 2                             General; Cindy S. Ferrier, Assistant
 3                             Director; Michele Y. F. Sarko,
 4                             Attorney, Civil Division, Office of
 5                             Immigration Litigation, United
 6                             States Department of Justice,
 7                             Washington D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Shu Yu Chen, a native and citizen of China,

14   seeks review of an April 1, 2013, decision of the BIA

15   denying her motion to reopen.       In re Shu Yu Chen, No. A078

16   853 767 (B.I.A. Apr. 1, 2013).      We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

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

20   abuse of discretion, mindful that such motions are

21   “disfavored.”     Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

22   2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).

23   Aliens seeking to reopen proceedings may move to reopen no

24   later than 90 days after the final administrative decision

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

26   § 1003.2(c)(2).     However, this time limitation does not


                                     2
 1   apply if the motion is “based on changed country conditions

 2   arising in the country of nationality or the country to

 3   which removal has been ordered, if such evidence is material

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

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

 6   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

 7       Chen’s motion to reopen was untimely; she filed it in

 8   2013, nearly nine years after the agency rendered its final

 9   decision.   The BIA determined that she failed to carry her

10   heavy burden of demonstrating material changed country

11   conditions that would excuse her delay.   Specifically, the

12   agency concluded that Chen’s motion was predicated on a

13   change in her personal circumstances – converting to

14   Christianity and participating in demonstrations – rather

15   than a change in China.   This was no abuse of discretion.

16   As this Court has made clear, “[a] self-induced change in

17   personal circumstances cannot suffice” to excuse an untimely

18   motion to reopen, particularly if the petitioner undertakes

19   those changes while under a final order of removal.    Wei

20   Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006).

21       Chen asserts that the BIA ignored reports showing

22   changed country conditions for Falun Gong practitioners.


                                   3
 1   But the BIA considered those reports in finding that Chen is

 2   not prima facie eligible for asylum because she failed to

 3   satisfy her obligation to “make some showing that

 4   authorities in [her] country of nationality are either aware

 5   of [her] activities or likely to become aware of [her]

 6   activities.”     Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

 7   (2d Cir. 2008).    Chen submitted reports on the Chinese

 8   government’s practice of harvesting organs from Falun Gong

 9   practitioners; she did not demonstrate that this practice

10   would impact her as a Falun Gong supporter.    As a

11   consequence, the BIA reasonably concluded that Chen failed

12   to establish a sufficient ground for her claimed fear of

13   persecution.

14       Because we affirm the BIA’s conclusion that Chen failed

15   to establish prima facie eligibility for asylum, Chen’s

16   arguments that she is eligible for withholding of removal

17   and relief under the Convention Against Torture necessarily

18   also fail because those claims shared the same factual

19   predicate.     See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

20   Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

21   520, 523 (2d Cir. 2005). Accordingly, remand as to these

22   claims would be futile.

23

                                     4
1       For the foregoing reasons, the petition for review is

2   DENIED.

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




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