         09-1354-ag
         Chen v. Holder
                                                                                       BIA
                                                                                  IJ, Weisel
                                                                               A073 568 341
                           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 30 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _________________________________________
12
13       MIN ZHANG CHEN,
14                Petitioner,
15
16                        v.                                    09-1354-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Scott E. Bratton, Cleveland, Ohio.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; Jennifer
27                                     Paisner Williams, Senior Litigation
28                                     Counsel; Ali Manuchehry, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, United States Department
31                                     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        Min Zhang Chen, a native and citizen of the People’s

6    Republic of China, seeks review of a March 5, 2009, order of

7    the BIA, affirming the November 19, 2008, decision of

8    Immigration Judge (“IJ”) Robert D. Weisel, which denied his

9    motion to reopen.   In re Min Zhang Chen, No. A073 568 341

10   (B.I.A. Mar. 5, 2009), aff’g No. A073 568 341 (Immig. Ct.

11   N.Y. City Nov. 19, 2008).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14       We review the agency’s denial of a motion to reopen for

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

16   Cir. 2005) (per curiam).    Here, the agency did not abuse its

17   discretion in denying Chen’s motion to reopen as untimely

18   because he filed it over ten years after his order of

19   removal became final.    See 8 C.F.R. § 1003.2(c)(2).

20       To the extent Chen argues that country conditions have

21   changed in China with respect to the treatment of Falun Gong

22   practitioners, the agency did not abuse its discretion in


                                    2
1    declining to reopen on that basis.    Indeed, Chen allegedly

2    began practicing Falun Gong almost ten years after the

3    practice was outlawed.    Thus, the agency reasonably viewed

4    the motion as based on a change in personal circumstances,

5    which fails to except his motion to reopen from the

6    applicable time limitations.    See 8 U.S.C.

7    § 1229a(c)(7)(C)(ii).    The birth of Chen’s second child in

8    the United States is similarly a change in personal

9    circumstances.   See Wei Guang Wang v. BIA, 437 F.3d 270, 274

10   (2d Cir. 2006); Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d

11   Cir. 2008) (holding that the existing legal system does not

12   permit aliens who have been ordered removed “to disregard

13   [those] orders and remain in the United States long enough

14   to change their personal circumstances (e.g., by having

15   children or practicing a persecuted religion) and initiate

16   new proceedings via a new asylum application.”).    Contrary

17   to Chen’s argument, a reasonable factfinder would not be

18   compelled to conclude that the agency failed to consider the

19   evidence he submitted regarding that claim.    Jian Hui Shao

20   v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen

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

22   2006).   Accordingly, because Chen failed to establish


                                    3
1    changed country conditions, the agency did not abuse its

2    discretion in denying his untimely motion to reopen.     See

3    8 U.S.C. § 1229(a)(c)(7)(C)(ii); Kaur, 413 F.3d at 233.

4        For the foregoing reasons, the petition for review is

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

6    removal that the Court previously granted in this petition

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

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

9    oral argument in these petitions is DENIED in accordance

10   with Federal Rule of Appellate Procedure 34(a)(2), and

11   Second Circuit Local Rule 34.1(b).

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




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