         10-5126-ag
         Chen v. Holder
                                                                                         BIA
                                                                                 A073 561 088
                           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       WEN HUI CHEN,
14                Petitioner,
15
16                        v.                                       10-5126-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Oleh R. Tustaniwsky, Brooklyn, New
24                                      York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Terri J. Scadron, Assistant
28                                      Director; Office of Immigration
29                                      Litigation; Shahrzad Baghai, Trial
30                                      Attorney, Office of Immigration
31                                      Litigation, United States Department
32                                      of Justice, 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 Wen Hui Chen, a native and citizen of the

 6   People’s Republic of China, seeks review of a November 24,

 7   2010, order of the BIA denying her motion to reopen.      In re

 8   Wen Hui Chen, No. A073 561 088 (B.I.A. Nov. 24, 2010).     We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

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

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

13   (2d Cir. 2006).   The agency’s regulations permit an alien

14   seeking to reopen proceedings to file one motion to reopen

15   no later than 90 days after the date on which the final

16   administrative decision was rendered.    See

17   8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).        It

18   is undisputed that Chen’s August 2008 motion to reopen was

19   untimely because the Immigration Judge (“IJ”) issued a final

20   order of removal in July 1996.    However, there are no

21   limitations for filing a motion to reopen if it is “based on

22   changed circumstances arising in the country of nationality


                                   2
 1   or in the country to which deportation has been ordered, if

 2   such evidence is material and was not available and could

 3   not have been discovered or presented at the previous

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

 5   8 U.S.C. § 1229a(c)(7)(C)(ii).

 6       Here, the BIA reasonably found that Chen failed to

 7   demonstrate a change in country conditions, and merely

 8   established a change in her personal circumstances, with

 9   regard to her membership in the Chinese Democracy Party

10   (“CDP”).   It is well-settled that changed personal

11   circumstances are distinguishable from changed country

12   conditions.   See Wei Guang Wang v. BIA, 437 F.3d 270, 273-

13   274 (2d Cir. 2006) (“The law is clear that a petitioner must

14   show changed country conditions in order to exceed the 90-

15   day filing requirement for seeking to reopen removal

16   proceedings. See 8 C.F.R. § 1003.2(c)(3)(ii). A self-induced

17   change in personal circumstances cannot suffice.”); Li Yong

18   Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

19   Cir. 2005) (per curiam) (holding that a change in personal

20   circumstances, namely the birth of a child in the United

21   States, does not fit under the changed circumstances

22   exception provided by 8 C.F.R. § 1003.2(c)(3)(ii)); see also


                                   3
 1   Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003)

 2   (noting that the birth of petitioner’s two children in the

 3   United States following an order of deportation does not

 4   amount to changed country conditions).   In support of her

 5   motion, Chen submitted evidence of her activities with the

 6   CDP, including articles she published criticizing the

 7   Chinese government and an affidavit of a party member

 8   stating that CDP members had been harmed upon their return

 9   from the United States to China.   Chen asserts that the BIA

10   failed to consider this evidence, which she claims shows a

11   change in country conditions because “Chinese authorities

12   are aware or likely to become aware of her political

13   activities.”

14         Chen’s evidence fails to demonstrate a material change

15   in country conditions in the Chinese government’s treatment

16   of CDP members since the time of Chen’s hearing before the

17   IJ.   See Norani v. Gonzales, 451 F.3d 292, 294 & n.3 (2d

18   Cir. 2006) (looking to the date on which the IJ closed the

19   record as the date before which the evidence must have been

20   unavailable, undiscoverable, or unpresentable).   Thus, the

21   BIA’s determination that Chen’s motion to reopen was

22   untimely and did not demonstrate a change in country

23   conditions was not an abuse of discretion.

                                   4
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk




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