     14-736
     Chen v. Sessions
                                                                                       BIA
                                                                               A073 489 668
                             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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   9th day of August, two thousand seventeen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            PIERRE N. LEVAL,
10                 Circuit Judges.
11   _____________________________________
12
13   JINXIA CHEN,
14                            Petitioner,
15
16                      v.                                           14-736
17                                                                   NAC
18
19   JEFFERSON B. SESSIONS, III,
20   UNITED STATESATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                        Jan Allen Reiner, New York, New
25                                          York.
26
27   FOR RESPONDENT:                        Joyce R. Branda, Acting Assistant
28                                          Attorney General; Eric W.
29                                          Marsteller, Senior Litigation
30                                          Counsel; Rachel L. Browning, Trial
31                                          Attorney, Office of Immigration
32                                          Litigation, United States
1                                      Department of Justice, Washington,
2                                      D.C.
3
4            UPON DUE CONSIDERATION of this petition for review of a

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

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

7    DENIED.

8            Petitioner Jinxia Chen, a native and citizen of China,

9    seeks review of a February 11, 2014, decision of the BIA denying

10   her motion to reopen as untimely and number barred.              In re

11   Jinxia Chen, No. A073 489 668 (B.I.A. Feb. 11, 2014).         We assume

12   the     parties’    familiarity    with   the   underlying   facts   and

13   procedural history in this case.

14           The applicable standards of review are well established.

15   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

16   2008).        Chen moved to reopen her exclusion proceedings to

17   present new evidence in support of her claimed fear of

18   persecution based on the births of her children in the United

19   States purportedly in violation of China’s population control

20   program.

21           It is undisputed that Chen’s motion to reopen was untimely

22   and number barred because it was her fifth motion to reopen filed

23   more than seventeen years after her deportation order became

24   final.        See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

25   § 1003.2(c)(2).       These time and numerical limitations do not
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1    apply if the motion is to reopen proceedings in order to apply

2    for asylum “based on changed country conditions arising in the

3    country of nationality or the country to which removal has been

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

5    would not have been discovered or presented at the previous

6    proceeding.”     8 U.S.C. § 1229a(c)(7)(C)(ii); see also

7    8 C.F.R. § 1003.2(c)(3)(ii).

8            For largely the same reasons set forth in Jian Hui Shao,

9    we find no error in the agency’s determination that Chen failed

10   to demonstrate materially changed country conditions excusing

11   the untimely and number barred filing of her motion.       See 546

12   F.3d at 159-66, 169-73 (noting that country conditions evidence

13   from 1998 to 2007 indicated that enforcement of family planning

14   policy was generally lax in Fujian Province with isolated

15   reports of force being used); see also In re S-Y-G-, 24 I. &

16   N. Dec. 247, 253 (B.I.A. 2007) (“In determining whether evidence

17   accompanying a motion to reopen demonstrates a material change

18   in country conditions that would justify reopening, [the BIA]

19   compare[s] the evidence of country conditions submitted with

20   the motion to those that existed at the time of the merits

21   hearing below.”).     Chen also failed to demonstrate a material

22   change in the economic penalties used to enforce China’s

23   population control policy given evidence that heavy fines have

                                      3
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1   been levied for violations since before her 1995 hearing.    See

2   In re S-Y-G-, 24 I. & N. Dec. at 257 (“Change that is incremental

3   or incidental does not meet the regulatory requirements for late

4   motions.”).

5           For the foregoing reasons, the petition for review is

6   DENIED.

7                                 FOR THE COURT:
8                                 Catherine O’Hagan Wolfe, Clerk




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