         09-0805-ag
         Chen v. Holder
                                                                                        BIA
                                                                               A 073 543 516
                           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 29 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                         Chief Judge,
 9                GUIDO CALABRESI,
10                DEBRA ANN LIVINGSTON,
11                         Circuit Judges.
12       ______________________________________
13
14       SHUN GUAN CHEN,
15                Petitioner,
16                                                              09-0805-ag
17                        v.                                    NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Yu Zhang, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General, Civil Division; Mark C.
28                                     Walters, Senior Litigation Counsel;
29                                     Glen T. Jaeger, Trial Attorney,
30                                     Office of Immigration Litigation,
31                                     Civil Division, United States
32                                     Department of Justice, Washington,
33                                     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, Shun Guan Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a January 30,

7    2009, order of the BIA denying his third motion to reopen.

8    In re Shun Guan Chen, No. A 073 543 516, (B.I.A. Jan. 30,

9    2009).   We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

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

12   abuse of discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006).   An alien may only file one motion to reopen and

14   must do so within 90 days of the agency’s final

15   administrative decision.   8 C.F.R. § 1003.2(c)(2).    However,

16   the time and number limitations do not apply to a motion to

17   reopen that is “based on changed circumstances arising in

18   the country of nationality or in the country to which

19   deportation has been ordered, if such evidence is material

20   and was not available and could not have been discovered or

21   presented at the previous hearing.”   8 C.F.R.

22   § 1003.2(c)(3)(ii).


                                   2
1         Here, the BIA did not abuse its discretion in denying

2    Chen’s untimely and number-barred motion to reopen.     As the

3    BIA ruled, adjustment of status is not an exception to the

4    applicable time limitation on motions to reopen.    See 8

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

6    also Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009)

7    (emphasizing “that untimely motions to reopen to pursue an

8    application for adjustment of status . . . do not fall

9    within any of the statutory or regulatory exceptions to the

10   time limits for motions to reopen before the Board”).       In

11   any event, as the BIA also found, Chen did not submit an

12   application for adjustment of status with his motion, as he

13   was required to do.   8 C.F.R. § 1003.2(c)(1) (“A motion to

14   reopen proceedings for the purpose of submitting an

15   application for relief must be accompanied by the

16   appropriate application for relief and all supporting

17   documentation”). 1

18        The BIA also did not abuse its discretion in declining



            1
             Chen argues that he established his eligibility to
       apply for adjustment because he submitted a Notice of
       Action form indicating that his visa petition had been
       approved; however, that form specifically noted that Chen
       was not eligible to apply for adjustment of status.


                                   3
1    to reopen Chen’s proceedings in order to consider his

2    eligibility for CAT relief.    As the BIA found, he failed to

3    present “any new, previously unavailable evidence

4    demonstrating changed country conditions in China”

5    sufficient to excuse his untimely filing.     See 8 U.S.C.

6    § 1003.2(c)(3)(ii).   Chen submitted: (1) his own affidavit;

7    and (2) a letter regarding his pending I-130 Form from the

8    National Visa Center; but neither the affidavit nor the

9    letter discuss country conditions in China.

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any pending motion

12   for a stay of removal in this petition is DISMISSED as moot.

13   Any pending request for oral argument in this petition is

14   DENIED in accordance with Federal Rule of Appellate

15   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19
20




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