         12-3832
         Chen v. Lynch
                                                                                       BIA
                                                                               A096 131 581
                              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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 28th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       XING DI CHEN,
14                Petitioner,
15
16                           v.                                 12-3832
17                                                              NAC
18       LORETTA E. LYNCH, UNITED STATES
19       ATTORNEY GENERAL,*
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Vlad Kuzmin, Kuzmin & Associates,
24                                     P.C., New York, NY.
25
26


                         *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Loretta E. Lynch is
             automatically substituted for former Attorney General
             Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:         Stuart F. Delery, Acting Assistant
 2                           Attorney General; William C.
 3                           Peachey, Assistant Director; Brianne
 4                           Whelan Cohen, Trial Attorney, Office
 5                           of Immigration Litigation, United
 6                           States Department of Justice,
 7                           Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Xing Di Chen, a native and citizen of China,

14   seeks review of an August 27, 2012, decision of the BIA

15   denying his motion to reopen his removal proceedings.          In re

16   Xing Di Chen, No. A096 131 581 (B.I.A. Aug. 27, 2012).          We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       We review the BIA’s denial of a motion to reopen for

20   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

21   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

22   proceedings is required to file a motion to reopen no later

23   than 90 days after the date on which the final

24   administrative decision was rendered and is permitted to

25   file only one such motion.     See 8 U.S.C. § 1229a(c)(7)(A),

26   (C); 8 C.F.R. § 1003.2(c)(2).       There is no dispute that


                                     2
 1   Chen’s motion to reopen, filed in January 2012, was untimely

 2   and number-barred, because his order of removal became final

 3   in 2007 and the BIA previously denied reopening in 2008.

 4       Chen contends, however, that his conversion to

 5   Christianity in the United States, the Chinese government’s

 6   awareness of his United States church activities, and the

 7   recent crackdown on underground churches in China constitute

 8   materially changed conditions excusing the time and number

 9   limitations.   See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

10   § 1003.2(c)(3).

11       As an initial matter, Chen’s conversion is a change in

12   personal circumstances, not a change in conditions as

13   required to excuse the time and number limitations.     See

14   Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).

15   Moreover, the BIA did not otherwise abuse its discretion in

16   finding that conditions for Chinese Christians had not

17   materially changed since Chen’s 2005 merits hearing.     See

18   Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); see also

19   In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In

20   determining whether evidence accompanying a motion to reopen

21   demonstrates a material change in country conditions that

22   would justify reopening, [the BIA] compare[s] the evidence


                                   3
 1   of country conditions submitted with the motion to those

 2   that existed at the time of the merits hearing below.”).

 3   While Chen relies on the U.S. Department of State’s 2010

 4   International Religious Freedom Report (“2010 Report”), the

 5   BIA reasonably concluded that this report reflected a

 6   continuation of conditions that had existed at the time of

 7   Chen’s 2005 merits hearing given similarities in treatment

 8   described in a 2004 report.     See Xiao Ji Chen v. U.S. Dep’t

 9   of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that

10   the weight accorded to evidence lies largely within the

11   agency’s discretion); see also Shao, 546 F.3d at 171

12   (recognizing that the task of resolving conflicts in the

13   record evidence, lies “largely within the discretion of the

14   agency”).

15       The BIA also did not err in considering Chen’s notices,

16   which described the local religious and family planning laws

17   generally, and specifically named Chen as an offender and

18   threatened to take his father’s assets.       First, the BIA did

19   not err in according diminished weight to the notices

20   because they were not authenticated by any means.       See id.

21   at 341-42; see also Cao He Lin v. U.S. Dep’t of Justice, 428

22   F.3d 391, 404 (2d Cir. 2005).       The notices also lacked any


                                     4
 1   indicia of authenticity when read in the context of the

 2   record, because Chen did not establish how he obtained them.

 3   See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir.

 4   2007).   Second, the BIA did not err in finding that the

 5   notices did not show a material change in country

 6   conditions, given that they did not specify Chen’s

 7   prospective punishment.   See Shao, 546 F.3d at 165, 172.     To

 8   the extent that one notice threatened financial harm, Chen

 9   failed to support his motion with sufficient evidence to

10   demonstrate that this harm would rise to the level of

11   persecution.   See id.; Guan Shan Liao v. U.S. Dep’t of

12   Justice, 293 F.3d 61, 70 (2d Cir. 2002).

13       Lastly, the BIA did not err in according diminished

14   evidentiary weight to the letters from Chen’s father and

15   uncle.   See Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209,

16   215 (B.I.A. 2010) (giving diminished evidentiary weight to

17   letters from “relatives and friends,” because they were from

18   interested witnesses not subject to cross-examination),

19   rev’d on other grounds by Hui Lin Huang v. Holder, 677 F.3d

20   130 (2d Cir. 2012).   And regardless of weight, these letters

21   were insufficient to establish a change in country

22   conditions because they do not describe a change in the way

23
                                   5
 1   Christians have been treated since Chen’s merits hearing in

 2   2005.     See In re S-Y-G, 24 I. & N. Dec at 253.

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

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




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