             09-0801-ag
             Chen v. Holder
                                                                                                                                                    BIA
                                                                                                                                            A070 012 126
                                          UNITED STATES COURT OF APPEALS
                                              FOR THE SECOND CIRCUIT

                                                             SUMMARY ORDER
     R U L IN G S B Y SU M M A R Y O R D E R D O N O T H A V E P R E CE D E N T IA L E F FE C T . C IT AT IO N T O A SU M M A R Y O R D E R F IL E D O N O R A FT E R
     J AN U ARY 1, 2007, IS PERM ITTED AN D IS GO VER N ED BY F ED ER AL R U LE O F A P PE LL AT E P R O C E D U R E 32.1 A N D T H IS C O U RT ’S L O CAL
     R U L E 32.1.1. W H E N C ITIN G A SU M M AR Y O R D ER IN A D O CU M E N T FILE D W ITH T H IS C O U RT , A PAR TY M U ST C IT E E IT H E R TH E
     F ED ER AL A P PE N D IX O R A N E L E C T R O N IC D A TA B ASE ( W ITH TH E N O TATIO N “ SU M M A R Y O R D E R ”). A PAR TY C ITIN G A SU M M AR Y
     O R D E R M U ST SE R V E A C O P Y O F IT O N A N Y P AR T Y N O T R E P R E SE N T E D B Y CO U N SE L .


 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 2 nd day of February, two thousand ten.
 5
 6           PRESENT:
 7                    ROBERT D. SACK,
 8                    PETER W. HALL,
 9                    DEBRA ANN LIVINGSTON,
10                             Circuit Judges.
11           _________________________________________
12
13           KE ING CHEN, A.K.A. KE-YIN CHEN,
14                    Petitioner,
15
16                                   v.                                                                         09-0801-ag
17                                                                                                              NAC
18           ERIC H. HOLDER, JR., UNITED STATES
19           ATTORNEY GENERAL,
20                    Respondent.
21           _________________________________________
22
23           FOR PETITIONER:                                        Ke Ing Chen, pro se, New York, New
24                                                                  York.
25
26           FOR RESPONDENT:                                        Tony West, Assistant Attorney
27                                                                  General; Anh-Thu P. Mai-Windle,
28                                                                  Senior Litigation Counsel; Arthur L.
29                                                                  Rabin, Trial Attorney, Office of
30                                                                  Immigration Litigation, United
31                                                                  States Department of Justice,
1                              Washington, D.C.
2
3        UPON DUE CONSIDERATION of this petition for review of a

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

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

6    is DENIED.

7        Petitioner Ke Ing Chen, a native and citizen of the

8    People’s Republic of China, seeks review of a February 5,

9    2009 order of the BIA denying his motion to

10   reopen/reconsider.     In re Ke Ing Chen a.k.a. Ke-Yin Chen,

11   No. A070 012 126 (B.I.A. Feb. 5, 2009).       We assume the

12   parties’ familiarity with the underlying facts and

13   procedural history of this case.

14       We review the BIA’s denial of a motion to reopen and

15   reconsider for an abuse of discretion.       See Kaur v. BIA, 413

16   F.3d 232, 233 (2d Cir. 2005) (per curiam).       To the extent

17   that Chen challenges the BIA’s denial of his motion to

18   reconsider, the BIA reasonably denied the motion as

19   untimely, because it was undisputed that it was filed beyond

20   the 30 day deadline.     See 8 C.F.R. § 1003.2(b)(2).    With

21   regard to the BIA’s denial of Chen’s motion to reopen, we

22   conclude that the BIA did not abuse its discretion in

23   denying Chen’s motion to reopen as untimely and number-



                                     2
1    barred.   Chen’s order of deportation became final in April

2    1998, but he did not file his motion until August 2008, well

3    beyond the 90-day deadline.   See 8 C.F.R. § 1003.2(c)(2).

4    The motion to reopen was his sixth filed before the BIA.

5    See id.

6        There is no time or numerical limit for filing a motion

7    to reopen “based on changed circumstances arising in the

8    country of nationality or in the country to which

9    deportation has been ordered, if such evidence is material

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

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

12   § 1003.2(c)(3)(ii).   Here, however, the BIA properly found

13   that Chen’s motion did not qualify for such an exception.

14   See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).

15       The BIA considered Chen’s evidence and reasonably

16   declined to give weight to the articles allegedly written by

17   Chen under a pseudonym in the United States.   See Xiao Ji

18   Chen v. U.S. Dept’s of Justice, 471 F.3d 315, 342 (2d Cir.

19   2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,

20   130-31 (2d Cir. 2005).   And the BIA did not err when it

21   found “not plausible” the claim that Chinese officials

22   required Chen’s wife to report monthly on Chen’s political



                                   3
1    activities in the United States in the absence of any

2    written police order corroborating the claim.     See Xiao Ji

3    Chen, 471 F.3d at 341.     Furthermore, the BIA reasonably

4    noted that the background evidence submitted in support of

5    the motion did not reflect the treatment of persons

6    similarly situated to Chen.     See Jian Gui Shao v. Mukasey,

7    546 F.3d 138, 160-61 (2d Cir. 2008).     And the BIA reasonably

8    declined to credit Chen’s assertions and particularized

9    evidence based on the agency’s underlying adverse

10   credibility finding.     See Qin Wen Zheng v. Gonzales, 500

11   F.3d 143, 146-47 (2d Cir. 2007).

12       Because the BIA did not err in finding that Chen failed

13   to demonstrate changed country conditions in China, it did

14   not abuse its discretion in denying his untimely and number-

15   barred motion to reopen/reconsider.     Because Chen’s claim

16   for CAT relief was based on the same factual circumstance as

17   his claim for asylum and withholding of removal, the BIA did

18   not err in finding that he failed to meet his burden of

19   proof for reopening to apply for CAT protection.     See Paul

20   v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

21       For the foregoing reasons, the petition for review is

22   DENIED.   Having completed our review, the motion the Court



                                     4
1   previously granted with respect to a stay of removal is

2   VACATED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6
7




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