         10-4801-ag                                                                      BIA
         Chen v. Holder                                                           Schoppert, IJ
                                                                                 A073 775 416

                           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 29th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _________________________________________
12
13       LI XIN CHEN,
14                Petitioner,
15
16                        v.                                       10-4801-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Michael Brown, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Anthony W. Norwood, Senior
27                                      Litigation Counsel; Hillel R. Smith,
28                                      Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      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 Li Xin Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of the October 26,

 7   2010, decision of the BIA affirming the August 27, 2009,

 8   decision of Immigration Judge (“IJ”) Douglas Schoppert

 9   denying his motion to reopen.       In re Li Xin Chen, No. A073

10   775 416 (B.I.A. Oct. 26, 2010), aff’g No. A073 775 416

11   (Immig. Ct. N.Y. City Aug. 27, 2009).       We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of the case.

14       Under the circumstances of this case, we have

15   considered both the IJ’s and the BIA’s opinions “for the

16   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237

17   (2d Cir. 2008).   We review the agency’s denial of the motion

18   to reopen for abuse of discretion.       See Ali v. Gonzales, 448

19   F.3d 515, 517 (2d Cir. 2006).       When the agency evaluates

20   country conditions evidence submitted with a motion to

21   reopen, we review its findings for substantial evidence.

22   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

23   2008).

                                     2
 1       The agency’s denial of Chen’s motion to reopen as

 2   untimely was not an abuse of discretion.    A motion to reopen

 3   generally must be filed no later than 90 days after the date

 4   on which the final administrative decision has been rendered

 5   in the proceedings sought to be reopened.    8 U.S.C.

 6   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

 7   dispute that Chen’s motion to reopen, filed in July 2009,

 8   was untimely, because the IJ had ordered him excluded in

 9   absentia in 1997.   See id.   However, the time and number

10   limitations do not apply to a motion to reopen if it is

11   “based on changed circumstances arising in the country of

12   nationality or in the country to which deportation has been

13   ordered, if such evidence is material and was not available

14   and could not have discovered or presented at the previous

15   hearing.”   8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

16   § 1229a(c)(7)(C)(ii).

17       As the IJ found, Chen’s practice of Falun Gong in the

18   United States is a change in his personal circumstances, not

19   a change in country conditions.     See Wei Guang Wang v. BIA,

20   437 F.3d 270, 273-74 (2d Cir. 2006); Yuen Jin v. Mukasey,

21   538 F.3d 143, 155 (2d Cir. 2008).    Moreover, although Chen

22   argues that he demonstrated changed country conditions by

23   submitting evidence which shows that the Chinese government

                                    3
 1   had stepped up its enforcement efforts against Falun Gong

 2   practitioners “even outside of China,” his argument is

 3   meritless because the harm Falun Gong practitioners

 4   allegedly suffered in the United States fails to show

 5   “changed country conditions arising in the country of

 6   nationality . . ..”   8 U.S.C. § 1229a(c)(7) (emphasis

 7   added); 8 C.F.R. § 1003.2(c)(2) (same).

 8       Further, the BIA’s determination that the evidence

 9   submitted by Chen failed demonstrate changed country

10   conditions is supported by substantial evidence.   See Jian

11   Hui Shao, 546 F.3d at 169.   While the background materials

12   show a continued repression of Falun Gong practitioners in

13   China, as the BIA concluded, they do not show a worsening of

14   conditions for Falun Gong practitioners in a way material to

15   Chen’s claim, as the evidence Chen submitted did not focus

16   on persecution in China.

17       Finally, Chen’s argument that the BIA abused its

18   discretion by relying upon the 2007 United States Department

19   of State Profile of Asylum Claims and Country Conditions, is

20   meritless.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

21   F.3d 315, 342 (2d Cir. 2006) (noting that the weight

22   afforded to the applicant’s evidence lies largely within the

23   discretion of the agency); see also id. at 341 (“[A] report

                                   4
 1   from the State Department is usually the best available

 2   source of information on country conditions.”) (quotations

 3   omitted).     We decline to reach Chen’s assertion that he has

 4   established his prima facie eligibility for relief.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

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




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