         09-1020-ag
         Chen v. Holder

                                                                                        BIA
                                                                                A078 412 192
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
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     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 15 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _________________________________________
12
13       LI YING CHEN,
14                Petitioner,
15
16                        v.                                       09-1020-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Cora J. Chang, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Blair T. O’Connor,
1                            Assistant Director; Joan H. Hogan,
2                            Attorney, Office of Immigration
3                            Litigation, United States Department
4                            of Justice, Washington, D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    is DENIED.

10       Petitioner Li Ying Chen, a native and citizen of the

11   People’s Republic of China, seeks review of a February 20,

12   2009 order of the BIA denying her motion to reopen.    In re

13   Li Ying Chen, No. A078 412 192 (B.I.A. Feb. 20, 2009).      We

14   assume the parties’ familiarity with the underlying facts

15   and procedural history in this case.

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

17   abuse of discretion.   See Kaur v. BIA, 413 F.3d 232, 233 (2d

18   Cir. 2005) (per curiam).    There is no dispute that Chen’s

19   second motion to reopen filed in October 2008 was untimely

20   and number-barred when the BIA issued a final order of

21   removal in February 2003.    See 8 C.F.R. § 1003.2(c)(2).

22   However, there are no time and numerical limitations for

23   filing a motion to reopen if it is “based on changed

24   circumstances arising in the country of nationality or in



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

2    evidence is material and was not available and could not

3    have been discovered or presented at the previous hearing.”

4    8 C.F.R. § 1003.2(c)(3)(ii).   The BIA reasonably found that

5    Chen did not qualify for such an exception.

6    A.   Family Planning Claim

7         Chen argues that the BIA erred in failing to adequately

8    consider as evidence of changed country conditions the

9    Notice from family planning officials in the record,

10   entitled “Documentation of Tantou Town Birth Control Office

11   of Changle City” (“Notice”).   The BIA did not err in

12   summarily concluding that the unauthenticated and unsigned

13   Notice that Chen submitted did not demonstrate material

14   changed circumstances in China.     See Wei Guang Wang v. BIA,

15   437 F.3d 270, 275 (2d Cir. 2006).

16        Because the BIA did not abuse its discretion in

17   summarily considering and rejecting the Notice that Chen

18   submitted as evidence of changed circumstances in China, see

19   id., it reasonably denied her motion to reopen as untimely

20   and number-barred, see 8 C.F.R. § 1003.2(c).     Accordingly,

21   we need not consider Chen’s argument that she demonstrated

22   her prima facie eligibility for relief based on the family

23   planning policy.   See 8 C.F.R. § 1003.2(c).

                                    3
1

2    B.   Christianity Claim

3         The BIA also did not err in declining to reopen Chen’s

4    proceedings based on her new practice of Christianity

5    because she failed to submit an application for asylum

6    regarding such a claim for relief.    See 8 C.F.R. §

7    1003.2(c)(1) (“A motion to reopen proceedings for the

8    purpose of submitting an application for relief must be

9    accompanied by the appropriate application for relief.”).

10   In addition, the BIA did not err in finding that Chen’s new

11   practice of Christianity constituted a change in her

12   personal circumstances and not a change in country

13   conditions excusing the time and numerical limitations for

14   filing her motion to reopen.   See Li Yong Zheng v. U.S.

15   Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).     The

16   BIA also reasonably found that Chen failed to demonstrate

17   material changed country conditions related to her

18   Christianity claim because she did not submit in support of

19   her motion any country conditions evidence discussing the

20   treatment of Christians in China.    See 8 U.S.C.

21   § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).    Accordingly, the

22   BIA did not abuse its discretion in denying her untimely and

23   number-barred motion to reopen to apply for relief based on

                                    4
1    her religion.   See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei

2    Guang Wang, 437 F.3d at 273-74.

3        For the foregoing reasons, the petition for review is

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

5    removal that the Court previously granted in this petition

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

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

8    oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34(b).

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




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