         11-4107                                                                        BIA
         Chen v. Holder                                                    Gordon-Uruakpa, IJ
                                                                               A070 894 073




                           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 24th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                DEBRA ANN LIVINGSTON,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       JIAN CHENG CHEN,
14                Petitioner,
15
16                        v.                                    11-4107
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gerald Karikari, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Leslie McKay,
27                                     Assistant Director; Allison Frayer,
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, Civil
30                                     Division, United States Department
31                                     of Justice, 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       Jian Cheng Chen, a native and citizen of the People’s

 6   Republic of China, seeks review of a September 13, 2011,

 7   order of the BIA affirming the October 8, 2010, decision of

 8   Immigration Judge (“IJ”) Vivienne E. Gordon-Uruakpa, denying

 9   his motion to reopen.     In re Jian Cheng Chen, No. A070 894

10   073 (B.I.A. Sept. 13, 2011), aff’g No. A070 894 073 (Immig.

11   Ct. N.Y. City Oct. 8, 2010).     We assume the parties’

12   familiarity with the underlying facts and procedural history

13   of this case.

14       Under the circumstances of this case, we have

15   considered both the IJ’s and the BIA’s opinions “for the

16   sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237

17   (2d Cir. 2008).     The applicable standards of review are well

18   established.    See Jian Hui Shao v. Mukasey, 546 F.3d 138,

19   168-69 (2d Cir. 2008).     We find no abuse of discretion in

20   this case.

21       Initially, there is no dispute that Chen’s 2010 motion

22   to reopen was untimely because his administrative order of

23   deportation became final in 1998.     See 8 U.S.C.

24   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).     To the extent


                                     2
 1   Chen contends that the time and number limitations do not

 2   apply to his motion to reopen because his motion is “based

 3   on changed circumstances arising in” China, 8 U.S.C.

 4   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), his

 5   arguments were properly rejected.       Chen asserts that he

 6   established changed conditions in China because the China

 7   Democracy Party (“CDP”) was not established until six months

 8   after his hearing date in 1998, and this change applies to

 9   him because he has since become a CDP member in the United

10   States.   However, as the agency found, his recent membership

11   in the CDP was a change in personal circumstances, not a

12   change in country conditions.       See Yuen Jin v. Mukasey, 538

13   F.3d 143, 155 (2d Cir. 2008).       Moreover, as the agency

14   found, Chen failed to demonstrate material changed

15   conditions in China because his evidence did not discuss the

16   Chinese government’s treatment of CDP members returning from

17   the United States, much less a change in the treatment of

18   such individuals.   See 8 U.S.C. § 1229a(c)(7)(C)(ii); see

19   also Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir.

20   2005) (absent “solid support” in the record that her fear is

21   objectively reasonable, a petitioner’s claim is “speculative

22   at best”).

23       Accordingly, the agency did not abuse its discretion in

24   denying Chen’s motion to reopen as untimely, 8 U.S.C.


                                     3
 1   § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii).    Because the

 2   agency’s denial of Chen’s motion to reopen as untimely is

 3   dispositive, we do not consider his alternate argument that

 4   he established his prima facie eligibility for relief.     See

 5   Jian Hui Shao, 546 F.3d at 168.    Chen does not challenge the

 6   agency’s denial of his motion to rescind his in absentia

 7   deportation order or its denial of his motion as a matter of

 8   discretion.

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19




                                    4
