         07-5432-ag
         Chen v. Holder
                                                                                        BIA
                                                                                   Nelson, IJ
                                                                                A070 579 413
                             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
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     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 19 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JON. O. NEWMAN,
10                PIERRE N. LEVAL,
11                       Circuit Judges.
12       _________________________________________
13
14       JIN PING CHEN,
15                Petitioner,
16
17                          v.                                  07-5432-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., * UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ________________________________________


                        *
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
         0 9 1 4 0 9 -2 7
 1   FOR PETITIONER:         Gary J. Yerman, New York, New York.
 2
 3   FOR RESPONDENT:         Jeffrey S. Bucholtz, Acting Assistant
 4                           Attorney General; Alison Marie Igoe,
 5                           Senior Litigation Counsel; Ann
 6                           Carroll Varnon, Attorney; Office of
 7                           Immigration Litigation, Civil
 8                           Division, United States Department of
 9                           Justice, Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioner Jin Ping Chen, a native and citizen of the

16   People’s Republic of China, seeks review of the November 13,

17   2007 order of the BIA that: (1) affirmed the February 28,

18   2006 decision of Immigration Judge (“IJ”) Barbara A. Nelson,

19   denying her motion to reopen; and (2) denied her motion to

20   remand.   In re Jin Ping Chen, No. A070 579 413 (B.I.A. Nov.

21   13, 2007), aff’g No. A070 579 413 (Immig. Ct. N.Y. City Feb.

22   28, 2006).   We assume the parties’ familiarity with the

23   underlying facts and procedural history in this case.

24       When the BIA adopts the decision of the IJ and

25   supplements the IJ’s decision, we review the decision of the

26   IJ as supplemented by the BIA.    See Yan Chen v. Gonzales,

27   417 F.3d 268, 271 (2d Cir. 2005).    We review the agency’s

28   denial of a motion to reopen or remand for abuse of

                                   2
1    discretion.   Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

2    2006); Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149,

3    157 (2d Cir. 2005).   A motion to remand that relies on newly

4    available evidence is held to the substantive requirements

5    of a motion to reopen.   Li Yong Cao, 421 F.3d at 156.    When

6    the agency considers relevant evidence of country conditions

7    in evaluating a motion to reopen, we review the agency’s

8    factual findings under the substantial evidence standard.

9    See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.

10   2008).

11       The agency did not err in denying Chen’s untimely

12   motions.   See 8 U.S.C. § 1229a(c)(7)(C); see also    8 C.F.R.

13   § 1003.2(c)(2).   Chen argues that the agency erred in

14   finding that the evidence she submitted failed to

15   demonstrate either material changed country conditions

16   sufficient to excuse the untimely filing of her motions or

17   her prima facie eligibility for relief from deportation.

18   However, these arguments fail where we have previously

19   reviewed the BIA’s consideration of evidence similar to that

20   which Chen submitted and have found no error in its

21   conclusion that such evidence is insufficient to establish

22   either material changed country conditions or a reasonable

23   possibility of persecution.   See Jian Hui Shao, 546 F.3d at


                                   3
1    169-72 (noting that “[w]e do not ourselves attempt to

2    resolve conflicts in record evidence, a task largely within

3    the discretion of the agency”); see also Wei Guang Wang v.

4    BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the

5    BIA must consider evidence such as “the oft-cited Aird

6    affidavit, which [it] is asked to consider time and again[,]

7    . . . it may do so in summary fashion without a reviewing

8    court presuming that it has abused its discretion”).

9        Chen’s arguments related to the filing of a successive

10   asylum application are without merit.   See Yuen Jin v.

11   Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir. 2008).

12       For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34(b).

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23                               By:___________________________




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