         13-1254
         Chen v. Holder
                                                                                       BIA
                                                                               A200 740 476
                               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 7th day of August, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       CHUNXIANG CHEN, AKA XIANGCHUN CHEN,
14       AKA CHUNXIANG CHEN, AKA XIANG CHUN
15       CHEN,
16                Petitioner,
17
18                        v.                                    13-1254
19                                                              NAC
20
21       ERIC H. HOLDER, JR., UNITED STATES
22       ATTORNEY GENERAL,
23                Respondent.
24       _____________________________________
25
26       FOR PETITIONER:                Eric Zheng, New York, New York.
27
28       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
29                                      General; Shelley R. Goad, Assistant
 1                           Director; Tim Ramnitz, Attorney,
 2                           Office of Immigration Litigation,
 3                           Civil Division, United States
 4                           Department of Justice, Washington,
 5                           D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioner ChunXiang Chen, a native and citizen of the

12   People’s Republic of China, seeks review of a March 18,

13   2013, decision of the BIA denying her motions to reopen and

14   reconsider.   In re Chunxiang Chen, No. A200 740 476 (B.I.A.

15   Mar. 18, 2013).   We assume the parties’ familiarity with the

16   underlying facts and procedural history in this case.

17   Because Chen does not challenge the denial of sua sponte

18   reopening, we do not address it.

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

20   reconsider for abuse of discretion.   See Ali v. Gonzales,

21   448 F.3d 515, 517 (2d Cir. 2006) (per curiam); Jin Ming Liu

22   v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).     An alien

23   must file a motion to reconsider within 30 days of the

24   decision for which review is sought, while a motion to

25   reopen must be filed within 90 days of the final


                                   2
 1   administrative order.     See 8 U.S.C. § 1229a(c)(6)(B),

 2   (7)(C);     8 C.F.R. § 1003.2(b)(2), (c)(2).   The BIA may deny

 3   reopening if the alien fails to demonstrate her prima facie

 4   eligibility for the underlying relief sought or does not

 5   present new, previously unavailable evidence.      See 8 C.F.R.

 6   § 1003.2(c); INS v. Abudu, 485 U.S. 94, 104-05 (1988).

 7       To the extent Chen requested reconsideration of the

 8   agency’s denial of cancellation of removal, by arguing that

 9   the immigration judge (“IJ”) mischaracterized her testimony

10   as inconsistent, the BIA did not abuse its discretion in

11   denying the motion as untimely because Chen filed it after

12   the 30-day filing deadline.     See 8 U.S.C. § 1229a(c)(6)(B).

13       Although Chen’s motion to reopen was timely, it did not

14   present material, previously unavailable evidence.      Her

15   explanation, that her apparently inconsistent testimony

16   regarding her U.S. residences was a result of her

17   misunderstanding of the questions posed, is an argument, not

18   evidence.     See Pretzantzin v. Holder, 736 F.3d 641, 651 (2d

19   Cir. 2013) (stating that “the arguments of counsel are not

20   evidence”).    Moreover, it is an explanation that could have

21   been provided to the IJ or on appeal to the BIA, and,

22   therefore, was previously available.     See 8 C.F.R.


                                     3
 1   § 1003.2(c)(2).   Nor was Chen’s evidence of her continuous

 2   residence in the United States new or previously

 3   unavailable, as it predated her 2011 merits hearing.

 4       Regarding her request to pursue an I-601A provisional

 5   waiver of inadmissibility, Chen submitted evidence that she

 6   had an approved visa petition and that qualifying relatives

 7   would suffer hardship if she were removed.       As the BIA

 8   explained, however, there were additional waiver

 9   requirements that Chen did not address.       With respect to an

10   alien in removal proceedings, a waiver is available only if

11   the agency had administratively closed proceedings, instead

12   of entering a removal order; here, Chen was ordered removed.

13   8 C.F.R. § 212.7(e)(3)(ii), (4)(v) (2014); see also 78 Fed.

14   Reg. 536, 545 (Jan. 3, 2013).       Moreover, Chen did not

15   demonstrate that she had a pending case before the

16   Department of State based on her approved visa petition, a

17   prerequisite for the waiver.    See 8 C.F.R. § 212.7(e)(3)(v).

18   Because Chen’s removal order rendered her ineligible for the

19   waiver, she did not establish her prima facie eligibility

20   for the relief sought, as required for reopening.       See

21   Abudu, 485 U.S. at 104-05.

22



                                     4
 1       Nothing in this decision precludes Chen from asking the

 2   Government to file a joint motion to reopen and terminate

 3   her proceedings in order to give her the benefit of applying

 4   for the I-601A waiver and consular processing, particularly

 5   given that the Government’s agreement to remand Chen’s prior

 6   petition under In re Immigration Petitions for Review

 7   Pending in U.S. Court of Appeals for the Second Circuit, 702

 8   F.3d 160(2d Cir. 2012), indicates that removal is not

 9   forthcoming.

10       For the foregoing reasons, the petition for review is

11   DENIED.

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




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