         10-3354-ag
         Chan v. Holder
                                                                                       BIA
                                                                               A098 594 204
                           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 1st day of December, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                   Circuit Judges.
11       _____________________________________
12
13       KUOK WA CHAN, also known as LIN YONG
14       CHEN, also known as LING YONG CHEN,
15                Petitioner,
16
17                        v.                                    10-3354-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Michael Brown, New York, N.Y.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Terri J. Scadron, Assistant
28                                     Director; Hillel R. Smith, Trial
29                                     Attorney, Office of Immigration
30                                     Litigation, Civil Division, United
31                                     States Department of Justice,
32                                     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       Kuok Wa Chan, a native and citizen of China, seeks

 6   review of an August 4, 2010, decision of the BIA denying his

 7   motion to reopen.     In re Kuok Wa Chan, No. A098 594 204

 8   (B.I.A. Aug. 4, 2010).    We assume the parties’ familiarity

 9   with the underlying facts and procedural history of this

10   case.

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

12   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

13   Cir. 2006).    Where the BIA evaluates country conditions

14   evidence, we review that determination for substantial

15   evidence.     Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

16   Cir. 2008).

17       It is undisputed that Chan’s motion to reopen was

18   untimely, as it was filed more than one year after the

19   agency’s order of removal became final.     See 8 U.S.C.

20   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    However, this

21   time limitation does not apply to a motion to reopen asylum

22   proceedings that is “based on changed circumstances arising


                                     2
 1   in the country of nationality or in the country to which

 2   deportation has been ordered, if such evidence is material

 3   and was not available and could not have been discovered or

 4   presented at the previous hearing.”   8 C.F.R.

 5   § 1003.2(c)(3)(ii); 8 U.S.C. § 1229a(c)(7)(C)(i).   Chan

 6   argues that the BIA abused its discretion in declining to

 7   credit the unauthenticated village notice he submitted and

 8   in finding that he failed to establish changed country

 9   conditions.

10       As a preliminary matter, the BIA did not err in

11   concluding that Chan’s Falun Gong activities in the United

12   States constituted a change in personal circumstances, not a

13   change in conditions “arising in the country of origin,”

14   8 U.S.C. § 1229a(c)(7)(C)(ii);   8 C.F.R. § 1003.2(c)(3)(ii),

15   and therefore were not sufficient to overcome the time

16   limitation for filing a late motion to reopen, see, e.g.,

17   Wei Guang Wang v. BIA, 437 F.3d 270, 272-74 (2d Cir. 2006)

18   (making clear that the time and numerical limitations on

19   motions to reopen may not be suspended because of a “self-

20   induced change in personal circumstances” that is “entirely

21   of [the applicant’s] own making after being ordered to leave

22   the United States”); Li Yong Zheng v. U.S. Dep’t of Justice,


                                  3
 1   416 F.3d 129, 130-31 (2d Cir. 2005) (holding that a change

 2   in personal circumstances does not qualify as “changed

 3   circumstances” so as to invoke the exception provided by

 4   8 C.F.R. § 1003.2(c)(3)(ii)).

 5       Chan’s arguments that the BIA abused its discretion in

 6   declining to credit the unauthenticated village notice he

 7   submitted and in concluding that he failed to establish

 8   changed country conditions are unavailing.   Contrary to

 9   Chan’s assertion, the BIA reasonably declined to credit the

10   notice in light of the absence of authentication and the

11   prior adverse credibility finding.   See Qin Wen Zheng v.

12   Gonzales, 500 F.3d 143, 149 (2d Cir. 2007) (concluding that

13   the BIA did not abuse its discretion in discrediting a

14   purported village notice where the document was not

15   authenticated and the alien had been found not credible).

16   Nor was the BIA required to credit Chan’s or his mother’s

17   affidavit.   Id. at 148 (concluding that the BIA did not

18   abuse its discretion in declining to credit documents

19   submitted with a motion to reopen where alien had been found

20   not credible in the underlying asylum hearing).   Chan

21   contends that when considered together, his evidence is

22   sufficient to satisfy the “heavy burden” placed on an


                                     4
 1   untimely motion to reopen.    However, given that the United

 2   States Department of State’s 2007 Profile on China indicated

 3   a continuation, rather than a change, in conditions for

 4   Falun Gong practitioners since Chan’s 2006 merits hearing,

 5   and that Chan’s other newly submitted evidence was

 6   insufficient to meet his burden, the BIA did not abuse its

 7   discretion in denying Chan’s motion as untimely because Chan

 8   failed to demonstrate materially changed country conditions

 9   relevant to his claim.    See Tu Lin v. Gonzales, 446 F.3d

10   395, 400 (2d Cir. 2006) (providing that State Department

11   reports are probative).

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 34.1(b).

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




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