         09-3492-ag
         Chen v. Holder
                                                                                       BIA
                                                                               A077 341 215
                               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 24 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                RICHARD C. WESLEY,
 9                GERARD E. LYNCH,
10                        Circuit Judges.
11       _______________________________________
12
13       LI FENG CHEN, also known as ZI WEN WANG,
14                Petitioner,
15
16                        v.                                    09-3492-ag
17                                                              NAC
18       ERIC H. HOLDER, Jr., U.S. ATTORNEY
19       GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General, Carl H. McIntyre, Assistant
27                                      Director, Justin R. Markel, Trial
28                                      Attorney, Office of Immigration
29                                      Litigation, Civil Division, United
30                                      States Department of Justice,
31                                      Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Li Feng Chen, a native and citizen of the

6    People’s Republic of China, seeks review of a July 20, 2009,

7    order of the BIA denying his motion to reopen his removal

8    proceedings.   In re Li Feng Chen, No. A077 341 215 (B.I.A.

9    July 20, 2009).     We assume the parties’ familiarity with the

10   underlying facts and procedural history of the 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).     An alien who has been ordered removed may

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

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

16   Here, the BIA properly denied Chen’s motion to reopen as

17   untimely because he filed it over six years after his July

18   2002 final order of removal.     See id.; 8 C.F.R.

19   § 1003.2(c)(2).

20       The 90-day filing deadline may be excused if the alien

21   can establish “changed country conditions arising in the

22   country of nationality . . . .”     8 U.S.C.


                                     2
1    § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).     Here,

2    however, the BIA reasonably concluded that reopening was not

3    warranted because Chen’s motion was based not on changed

4    country conditions in China, but on changed personal

5    circumstances – his conversion to Catholicism.     See Yuen Jin

6    v. Mukasey, 538 F.3d 143, 155-56 (2d Cir. 2008) (holding

7    that the existing legal system does not permit aliens who

8    have been ordered removed “to disregard [those] orders and

9    remain in the United States long enough to change their

10   personal circumstances (e.g., by having children or

11   practicing a persecuted religion) and initiate new

12   proceedings via a new asylum application”); see also Wei

13   Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting

14   that “apparent gaming of the system in an effort to avoid

15   [removal] is not tolerated by the existing regulatory

16   scheme”).     Furthermore, there is no merit to Chen’s argument

17   that he was not required to show changed country conditions

18   in order to excuse the untimely filing of his motion to

19   reopen.     See Yuen Jin, 538 F.3d at 151.

20       Lastly, in challenging the BIA’s finding that he failed

21   to demonstrate how the treatment of Christians in China

22   today differed from that which existed at the time his


                                     3
1    hearing concluded, Chen cites only to evidence not in the

2    administrative record.    However, evidence not included in

3    the administrative record is not reviewable by this Court.

4    See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni v.

5    Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).    Accordingly, we

6    will not disturb the BIA’s changed country conditions

7    finding.    We also need not reach Chen’s argument that he is

8    prima facie eligible for relief because he was required to

9    show changed country conditions in order to succeed on his

10   untimely motion.    See 8 U.S.C. § 1229a(c)(7)(C)(ii).

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).
19
20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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