         09-2212-ag
         Chen v. Holder
                                                                                        BIA
                                                                               A 098 889 364
                           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 19 th day of February, two thousand               ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       ______________________________________
12
13       YUE YAN CHEN,
14                Petitioner,
15                                                              09-2212-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Joan Xie, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; John S.
27                                     Hogan, Senior Litigation Counsel;
28                                     Kiley L. Kane, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     Civil Division, United States
31                                     Department of Justice, Washington,
32                                     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, Yue Yan Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a May 12, 2009,

7    order of the BIA denying her motion to reopen her removal

8    proceedings.     In re Yue Yan Chen, No. A 098 889 364 (B.I.A.

9    May 12, 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).    “A motion to reopen proceedings shall not be

14   granted unless it appears to the Board that evidence sought

15   to be offered is material and was not available and could

16   not have been discovered or presented at the former

17   hearing.” 8 C.F.R. § 1003.2(c)(1)

18       Here, the BIA did not abuse its discretion in denying

19   Chen’s motion to reopen because the evidence she sought to

20   introduce, her sister’s letter, was previously available and

21   could have been presented at her merits hearing.     Id.

22   During that hearing, the IJ asked Chen why her sister failed


                                     2
1    to submit a letter on her behalf. Chen first replied that

2    she had asked her sister to write a letter but “d[id]n’t

3    know why she didn’t write it,” then stated that her sister

4    “had a lot of work to do.”   Given such testimony, the BIA

5    did not abuse its discretion in finding that Chen could have

6    submitted her sister’s letter at the time of her hearing.

7    Id.

8          For the foregoing reasons, the petition for review is

9    DENIED.

10

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




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