         12-3773
         Chen v. Holder
                                                                                       BIA
                                                                               A078 125 624
                           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 10th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                GUIDO CALABRESI,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _____________________________________
12
13       FENG YU CHEN,
14                Petitioner,
15
16                        v.                                    12-3773
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Feng Yu Chen, pro se, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Ernesto H. Molina,
28                                     Jr., Assistant Director; Jeffrey R.
29                                     Leist, Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 4   review is DENIED.

 5       Feng Yu Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of an August 28, 2012,

 7   decision of the BIA denying her motion to reopen.     In re

 8   Feng Yu Chen, No. A078 125 624 (B.I.A. Aug. 28, 2012).    We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “disfavored.”   Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

15   Doherty, 502 U.S. 314, 322-23 (1992)).   When the BIA

16   considers relevant evidence of country conditions in

17   evaluating a motion to reopen, we review the BIA’s factual

18   findings under the substantial evidence standard.     See Jian

19   Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

20       As an initial matter, we need not review the BIA’s

21   denial of Chen’s motion to reopen insofar as it was based on

22   her claimed fear of persecution under China’s family



                                  2
 1   planning policy because she has not challenged the BIA’s

 2   decision to that extent.   See Yueqing Zhang v. Gonzales, 426

 3   F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).   Regardless,

 4   liberally construing her brief as raising such an argument,

 5   see Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir.

 6   1999), the BIA did not abuse its discretion in this regard

 7   because Chen did not submit any new material evidence as

 8   required in a motion to reopen.   See 8 U.S.C.

 9   § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1); see also INS v.

10   Abudu, 485 U.S. 94, 104-05 (1988).

11       The BIA did not err in alternatively denying Chen’s

12   motion to reopen as untimely and number-barred.      An alien

13   may file only one motion to reopen within 90 days of the

14   agency’s final administrative decision.   8 U.S.C.

15   § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).      Although

16   Chen’s motion was indisputably untimely and number-barred

17   because it was filed more than nine years after the agency’s

18   final order of removal and it was her second such motion,

19   see 8 U.S.C. § 1229a(c)(7)((A), C)(i), there are no time or

20   numerical limitations for filing a motion to reopen if it is

21   “based on changed country conditions arising in the country

22   of nationality or the country to which removal has been


                                   3
 1   ordered, if such evidence is material and was not available

 2   and would not have been discovered or presented at the

 3   previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

 4   also 8 C.F.R. § 1003.2(c)(3)(ii).

 5       Contrary to Chen’s contention, her conversion to

 6   Christianity constituted a change in her personal

 7   circumstances rather than a change in country conditions

 8   sufficient to excuse the applicable limitations.     See Li

 9   Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31

10   (2d Cir. 2005); see also Yuen Jin v. Mukasey, 538 F.3d 143,

11   155 (2d Cir. 2008).    Moreover, the BIA reasonably found that

12   Chen’s evidence did not demonstrate a material change in

13   country conditions because that evidence did not indicate

14   that conditions had worsened for individuals similarly

15   situated to Chen.     See 8 U.S.C. § 1229a(c)(7)(C)(ii); see

16   also Jian Hui Shao, 546 F.3d at 169.    Accordingly, the BIA

17   did not abuse its discretion in denying Chen’s motion to

18   reopen as untimely and number-barred.     See 8 U.S.C.

19   § 1229a(c)(7)(C).

20       Finally, because Chen failed to demonstrate that

21   similarly situated individuals face persecution on account

22   of their religion, the BIA did not err in concluding that

23   she failed to demonstrate her prima facie eligibility for

                                     4
1   relief, which also provided an independent basis for denying

2   her motion to reopen.   See Abudu, 485 U.S. at 104.

3       For the foregoing reasons, the petition for review is

4   DENIED.

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8




                                  5
