         09-3808-ag
         Pan v. Holder
                                                                                       BIA
                                                                               A078 206 563
                              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 3 rd day of September, two thousand               ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                GUIDO CALABRESI,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       Yu Feng Pan,
14
15                       Petitioner,
16
17                       v.                                     09-3808-ag
18                                                              NAC
19
20       ERIC H. HOLDER, JR., U.S. ATTORNEY
21       GENERAL,
22
23                Respondent.
24       _______________________________________
25
26       FOR PETITIONER:                Theodore N. Cox, New York, NY.
27
28       FOR RESPONDENT:                Tony West, Assistant Attorney
29                                      General, Michelle G. Latour,
30                                      Assistant Director, R. Alexander
31                                      Goring, Trial Attorney, Office of
1                              Immigration Litigation, Civil
2                              Division, United States Department
3                              of Justice, Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

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

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

8    review is DENIED.

9        Yu Feng Pan, a native and citizen of the People’s

10   Republic of China, seeks review of an August 17, 2009 order

11   of the BIA denying her motion to reopen her removal

12   proceedings.   In re Pan, No. A078 206 563 (B.I.A. Aug. 17,

13   2009).   We assume the parties’ familiarity with the

14   underlying facts and procedural history of the case.

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

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

17   (2d Cir. 2006).     An alien who has been ordered removed may

18   file one motion to reopen but must do so within 90 days of

19   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

20   Here, the BIA properly denied Pan’s motion to reopen as

21   untimely and number-barred because she filed it more than

22   six years after the entry of her December 2002 final order

23   of removal, and it was the second motion to reopen that she

24   filed with the BIA.     See id.; 8 C.F.R. § 1003.2(c)(2).

25       Although the time and number limitations may be excused

                                     2
1    when the movant alleges changed country conditions, 8 U.S.C.

2    § 1229a(c)(7)(C)(ii), the BIA reasonably found that the

3    evidence Pan submitted failed to demonstrate that country

4    conditions in China had changed since her merits hearing, at

5    which she did not appear and was ordered removed in

6    absentia.     Indeed, the BIA may deny a motion to reopen if

7    the movant has not introduced previously unavailable,

8    material evidence.     INS v. Abudu, 485 U.S. 94, 104-05

9    (1988).     As the BIA found, although the evidence Pan

10   submitted was previously unavailable, it was not material

11   because it did not compare the current conditions in China

12   with the conditions that existed for Christians at the time

13   of Pan’s hearing.     See Matter of S-Y-G-, 24 I. & N. Dec 247,

14   253 (B.I.A. 2007) (finding that “[i]n determining whether

15   evidence accompanying a motion to reopen demonstrates a

16   material change in country conditions that would justify

17   reopening, we compare the evidence of country conditions

18   submitted with the motion to those that existed at the time

19   of the merits hearing below”); see also Yuen Jin v. Mukasey,

20   538 F.3d 143, 155 (2d Cir. 2008) (holding that the existing

21   legal system does not permit aliens who have been ordered

22   removed “to disregard [those] removal orders and remain in

23   the United States long enough to change their personal

                                     3
1    circumstances (e.g., by having children or practicing a

2    persecuted religion) and initiate new proceedings via a new

3    asylum application”); Wei Guang Wang v. B.I.A., 437 F.3d

4    270, 274 (2d Cir. 2006) (noting that “apparent gaming of the

5    system in an effort to avoid [removal] is not tolerated by

6    the existing regulatory scheme”).   Thus, substantial

7    evidence supports the BIA’s conclusion that Pan failed to

8    establish changed country conditions in China.     See 8 C.F.R.

9    § 1003.2(c)(2); (c)(3)(ii); see also Jian Hui Shao v.

10   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

11       Furthermore, a reasonable fact-finder would not be

12   compelled to conclude that the BIA ignored any material

13   evidence.   See Wei Guang Wang, 437 F.3d at 275; Xiao Ji Chen

14   v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir.

15   2006).   Here, given the BIA’s references to the

16   documentation submitted with the motion to reopen, the

17   record demonstrates that the BIA both considered Pan’s

18   evidence and made reasonable findings based on the record.

19   See Wei Guang Wang, 437 F.3d at 275 (rejecting the notion

20   that the agency “must expressly parse or refute on the

21   record each individual argument or piece of evidence offered

22   by the petitioner” (internal quotation marks omitted)); see

23   also Xiao Ji Chen, 471 F.3d at 337 n.17 (“[W]e presume that

                                   4
1    an IJ has taken into account all of the evidence before him,

2    unless the record compellingly suggests otherwise.”).

3    Accordingly, because Pan was required to show changed

4    country conditions in order to obtain reopening of her

5    proceedings, the BIA did not abuse its discretion in denying

6    her motion.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).

7        For the foregoing reasons, the petition for review is

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

9    removal that the Court previously granted in this petition

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

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

12   oral argument in this petition is DENIED in accordance with

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

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17
18




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