     18-1205
     Chen v. Barr
                                                                                   BIA
                                                                           A078 853 842


                         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
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 24th day of April, two thousand twenty.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            SUSAN L. CARNEY,
 9            RICHARD J. SULLIVAN,
10                 Circuit Judges.
11   _____________________________________
12
13   CUI PING CHEN, AKA ANNIE DUONG,
14            Petitioner,
15
16                  v.                                           18-1205
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Dehai Zhang, Esq., Flushing, NY.
24
25   FOR RESPONDENT:                  Joseph H. Hunt, Assistant Attorney
26                                    General; Derek C. Julius,
27                                    Assistant Director; Margaret
28                                    Kuehne Taylor, Senior Litigation
29                                    Counsel, Office of Immigration
30                                    Litigation, United States
31                                    Department of Justice, Washington,
32                                    DC.
 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        Petitioner Cui Ping Chen, a native and citizen of the

6    People’s Republic of China, seeks review of an April 16, 2018,

7    decision of the BIA denying her motion to reopen.   In re Cui

 8   Ping Chen, No. A 078 853 842 (B.I.A. Apr. 16, 2018).        We

 9   assume the parties’ familiarity with the underlying facts and

10   procedural history.

11       An alien seeking to reopen proceedings may file only one

12   motion to reopen no later than 90 days after the final

13   administrative decision.   8 U.S.C. § 1229a(c)(7)(A), (C)(i);

14   8 C.F.R. § 1003.2(c)(2).    Chen’s 2017 motion was untimely

15   because it was filed approximately six years after her final

16   removal order.   But there is an exception: “There is no time

17   limit on the filing of a motion to reopen if the basis of the

18   motion is to apply for [asylum] and is based on changed

19   country conditions arising in the country of nationality or

20   the country to which removal has been ordered, if such

21   evidence is material and was not available and would not have

22   been discovered or presented at the previous proceeding.”    8

23   U.S.C. § 1229a(c)(7)(C)(ii).
                                    2
 1          We review the agency’s denial of a motion to reopen for

 2   abuse of discretion but review any finding regarding changed

 3   country conditions for substantial evidence.                    Jian Hui Shao

 4   v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).                       “An abuse

 5   of discretion may be found in those circumstances where the

 6   [BIA’s]      decision        provides        no     rational         explanation,

 7   inexplicably departs from established policies, is devoid of

 8   any    reasoning,      or    contains       only    summary     or    conclusory

 9   statements; that is to say, where the [BIA] has acted in an

10   arbitrary or capricious manner.”              Ke Zhen Zhao v. U.S. Dep’t

11   of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations

12   omitted).

13          The BIA did not abuse its discretion in declining to

14   reopen to the extent that Chen sought to apply for asylum

15   because her motion largely relied on her changed personal

16   circumstances.        See Wei Guang Wang v. BIA, 437 F.3d 270, 273

17   (2d Cir. 2006) (holding that changed personal circumstances

18   do    not   fall    within    the   changed        conditions    exception    to

19   reopening).        And her limited country conditions evidence only

20   addressed events after 2015; it did not address how conditions

21   have    changed     since    her    2011    final     removal    order.      Her

22   evidence      showed        persecution       of     Christians        attending

23   unregistered churches in some parts of China, but it did not
                                             3
 1   reflect a material worsening of conditions as compared to the

 2   record before the IJ.         For example, a 2007 State Department

 3   report    that   Chen    submitted       with   her    original      asylum

 4   application notes that in some parts of China, “local security

 5   officials use threats, demolition of unregistered property,

 6   interrogation, arrest, imprisonment, and sometimes severe

 7   physical abuse to target unregistered religious leaders and

 8   their followers.”       The BIA reasonably concluded that Chen

 9   failed to establish that conditions have changed materially

10   since her 2009 hearing.         See In re S-Y-G-, 24 I. & N. Dec.

11   247,    253   (BIA   2007)    (“In    determining     whether      evidence

12   accompanying     a   motion   to    reopen   demonstrates      a   material

13   change in country conditions that would justify reopening,

14   [the   BIA]   compare[s]      the   evidence    of   country    conditions

15   submitted with the motion to those that existed at the time

16   of the merits hearing below.”).

17          The BIA also     reasonably observed that Chen              has   not

18   presented evidence that Chinese authorities are aware of, or

19   are likely to become aware of, her practice of Christianity

20   in the United States, as required to establish prima facie

21   eligibility for asylum for claims based solely on activities

22   undertaken within the United States.             See Hongsheng Leng v.

23   Mukasey, 528 F.3d 135, 143 (2d Cir. 2008); see also INS v.
                                          4
 1   Abudu, 485 U.S. 94, 104–05 (1988) (even assuming there has

 2   been a change in conditions, the agency may nevertheless deny

 3   reopening where a movant fails to demonstrate prima facie

 4   eligibility for relief from removal).   Chen did not support

 5   her claim that Chinese authorities are surveilling her with

 6   any evidence.

 7       While the BIA has regulatory authority to reopen untimely

 8   proceedings sua sponte, 8 C.F.R. § 1003.2(a), Chen has not

 9   raised this issue before the agency or this Court.

10       For the foregoing reasons, the petition for review is

11   DENIED.   All pending motions and applications are DENIED and

12   stays VACATED.

13                               FOR THE COURT:
14                               Catherine O’Hagan Wolfe,
15                               Clerk of Court




                                   5
