         13-670
         Chen v. Holder
                                                                                       BIA
                                                                               A078 928 151
                           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 9th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                DEBRA ANN LIVINGSTON,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       RENG SHENG CHEN, AKA REN SHENG CHEN,
14                Petitioner,
15
16                        v.                                    13-670
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Fuhao Yang, Law Office of Fuhao
24                                     Yang, New York, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
27                                     General; Edward J. Duffy, Senior
28                                     Litigation Counsel; Nicole R.
29                                     Prairie, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Reng Sheng Chen, a native and citizen of

 6   China, seeks review of a January 29, 2013 decision of the

 7   BIA denying his untimely and number-barred motion to reopen.

 8   In re Reng Sheng Chen, No. A078 928 151 (B.I.A. Jan. 29,

 9   2013).   We assume the parties’ familiarity with the

10   underlying facts and procedural history in this case.

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

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

13   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

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

15   than 90 days after the date on which the final

16   administrative decision was rendered and may file only one

17   such motion.    See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

18   § 1003.2(c)(2).    There is no dispute that Chen’s 2012 motion

19   was untimely and number barred because he filed two prior

20   motions to reopen and his order of removal became final in

21   2007.    See 8 U.S.C. § 1101(a)(47)(B).   Chen contends,

22   however, that his recent conversion to Christianity in the

23   United States and worsened treatment of Christians in China

                                    2
 1   constitute materially changed conditions excusing his motion

 2   from the applicable time and number limitations.     He also

 3   argues that the attorney who filed his second motion to

 4   reopen rendered ineffective assistance of counsel.

 5       The BIA did not abuse its discretion in denying

 6   reopening due to Chen’s failure to support his motion with

 7   an application for relief.   The applicable regulation makes

 8   clear that an appropriate application for relief is

 9   mandatory, not permissive.   See 8 C.F.R. § 1003.2(c)(1) (“A

10   motion to reopen proceedings for the purpose of submitting

11   an application for relief must be accompanied by the

12   appropriate application for relief and all supporting

13   documentation.”); Lin Xing Jiang v. Holder, 639 F.3d 751,

14   757 (7th Cir. 2011).

15       Chen’s contention that the BIA erred by requiring

16   evidence of changed conditions in his home province of

17   Fujian is misplaced because he bore the burden of supporting

18   his motion with “material” evidence.   See 8 C.F.R.

19   § 1003.2(c)(1); 8 U.S.C. § 1229a(c)(7)(B).   Cf. Jian Hui

20   Shao v. Mukasey, 546 F.3d 138, 148-49, 160-62 (2d Cir. 2008)

21   (stating that where enforcement of a policy varies, it is

22   the applicant’s burden to show a well-founded fear of


                                   3
 1   persecution in his locality in China).     Chen does not

 2   challenge the BIA’s finding that he failed to demonstrate

 3   materially changed conditions in Fujian Province.     He has

 4   therefore waived review of this dispositive determination.

 5   Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.

 6   2005).

 7       Lastly, the BIA did not err by declining to address

 8   Chen’s ineffective assistance claim.     Ineffective assistance

 9   of counsel may toll the 90-day time limitation on motions to

10   reopen if the movant has exercised “due diligence” in

11   pursuing his claim throughout the entire period sought to be

12   tolled.   See Rashid v. Mukasey, 533 F.3d 127, 130-31 (2d

13   Cir. 2008).   However, Chen’s ineffective assistance claim,

14   even if credited, could not furnish a basis for tolling the

15   90-day time limitation because his attorney’s allegedly

16   deficient representation did not commence until 2009—well

17   after the 90-day period had expired.     Chen’s assertion that

18   the BIA erred by declining to reopen his proceedings sua

19   sponte is also misplaced because his motion did not request

20   sua sponte reopening, which, in any event, we generally lack

21   jurisdiction to review.   See Lin Zhong v. U.S. Dep’t of

22   Justice, 480 F.3d 104, 107 n.1 (2d Cir. 2007) (recognizing


                                   4
 1   that issue exhaustion is a mandatory, although not

 2   jurisdictional, requirement); see also Ali, 448 F.3d at 518

 3   (holding that this Court lacks jurisdiction to review the

 4   BIA’s “entirely discretionary” decision to decline to reopen

 5   proceedings sua sponte).

 6       For the foregoing reasons, the petition for review is

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

 8   removal that the Court previously granted in this petition

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

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

11   oral argument in this petition is DENIED in accordance with

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

13   Circuit Local Rule 34.1(b).

14                                 FOR THE COURT:
15                                 Catherine O’Hagan Wolfe, Clerk
16
17




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