08-3412-ag
Chen v. Holder
                                                                                BIA
                                                                            Chew, IJ
                                                                        A073 054 457


                  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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31 st day of August, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         PIERRE N. LEVAL,
              Circuit Judges.
_________________________________________

QI BIN CHEN,
         Petitioner,

                 v.                                                08-3412-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
         Respondent.
_________________________________________


         *
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr., is automatically substituted for former
Attorney General Michael B. Mukasey as respondent in this case.

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FOR PETITIONER:                     Gary J. Yerman, New York, New York.

FOR RESPONDENT:                     Michael F. Hertz, Acting Assistant
                                    Attorney General; Barry J. Pettinato,
                                    Assistant Director; Kristin A. Moresi,
                                    Trial Attorney, Office of Immigration
                                    Litigation, United States Department
                                    of Justice, Washington, D.C.

        UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED.

        Petitioner      Qi    Bin    Chen,   a   native    and   citizen   of    the

People’s Republic of China, seeks review of the June 19, 2008

order       of   the   BIA,   affirming      the   May    3,   2007   decision    of

Immigration Judge (“IJ”) George T. Chew, which denied his

motion to reopen.            In re Qi Bin Chen, No. A073 054 457 (B.I.A.

June 19, 2008), aff’g No. A073 054 457 (Immig. Ct. N.Y. City

May 3, 2007).           We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

        Under the circumstances of this case, we review only the

decision of the BIA.            See Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413

F.3d 188, 191 n.4 (2d Cir. 2005).                    We review the agency’s

denial of a motion to reopen for abuse of discretion.                      Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).                      When the agency

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considers        relevant     evidence       of    country        conditions        in

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

findings under the substantial evidence standard.                          See Jian

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

        The BIA did not err in affirming the IJ’s denial of

Chen’s        untimely     motion    to    reopen.          See     8     U.S.C.     §

1229a(c)(7)(C); see also 8 C.F.R. § 1003.23(b).                            We have

previously reviewed the agency’s consideration of evidence

similar to that which Chen submitted and have found no error

in    its     conclusion    that    such    evidence      is   insufficient         to

establish either material changed country conditions excusing

the untimely filing of a motion to reopen or a reasonable

possibility of forced sterilization.                    See Jian Hui Shao, 546

F.3d at 169-72; see also Wei Guang Wang v. BIA, 437 F.3d 270,

275     (2d   Cir.   2006).     Because      the    BIA    found    that    the     IJ

reasonably concluded that Chen failed to demonstrate either

material       changed   country     conditions         excusing    the    untimely

filing of his motion to reopen or his prima facie eligibility

for relief from removal, we need not consider his challenge to

the     agency’s     determination        that    his    proceedings       did     not

warrant reopening as a matter of discretion.                       See 8 C.F.R. §

1003.23(b); see also INS v. Abudu, 485 U.S. 94, 104-05 (1988).



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        For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




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