    09-4196-ag
    Chen v. Holder
                                                                                  BIA
                                                                          A073 034 846
                          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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 19th day of October, two thousand ten.
    PRESENT:
             JOSEPH M. McLAUGHLIN,
             GUIDO CALABRESI,
             PETER W. HALL,
                   Circuit Judges.
    _______________________________________

    HE YUN CHEN,
             Petitioner,

                     v.                                    09-4196-ag
                                                           NAC

    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                Kim-Bun Thomas Li, Rockville,
                                   Maryland.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Jennifer Paisner Williams,
                                   Senior Litigation Counsel; Margaret
                                   Kuehne Taylor, Attorney, Office of
                                   Immigration Litigation, Civil
                                   Division, United States Department
                                   of Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.

     He Yun Chen, a native and citizen of the People’s
Republic of China, seeks review of a September 8, 2009,
order of the BIA, affirming the May 30, 2008, decision of
Immigration Judge (“IJ”) Annette S. Elstein, denying his
motion to reopen. In re Chen, No. A073 034 846 (B.I.A.
Sept. 8, 2009), aff’g No. A073 034 846 (Immig. Ct. N.Y. City
May 30, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.

     Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review
the agency’s denial of a motion to reopen for abuse of
discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006). When the agency considers relevant evidence of
country conditions in evaluating a motion to reopen, we
review the agency’s factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008). An alien who has been ordered
removed may file one motion to reopen, but must do so within
90 days of the final administrative decision. 8 U.S.C.
§ 1229a(c)(7). Here, the IJ properly denied Chen’s motion
to reopen as untimely, as it was filed more than ten years
after his December 1997 final order of removal. See id.;
8 C.F.R. § 1003.2(c)(2).

     The agency reasonably found that Chen’s motion did not
qualify for any exception to the time limitations. See
8 C.F.R. § 1003.2(c)(3)(ii). It is well-settled that a
change in personal circumstances, such as the birth of
Chen’s two U.S. citizen children, is not evidence of changed
conditions in China. See Wei Guang Wang v. BIA, 437 F.3d
270, 273-74 (2d Cir. 2006) (noting that “apparent gaming of
the system in an effort to avoid [removal] is not tolerated
by the existing regulatory scheme”); Yuen Jin v. Mukasey,
538 F.3d 143, 151-56 (2d Cir. 2008) (holding that the
existing legal system does not permit aliens who have been
ordered removed “to disregard [those] orders and remain in
the United States long enough to change their personal
circumstances (e.g., by having children or practicing a

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persecuted religion) and initiate new proceedings via a new
asylum application.”). Although Chen disputes the BIA’s
finding that he failed to demonstrate a material change in
country conditions based on the evidence he submitted, his
arguments are foreclosed by this Court’s decision in Jian
Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008).

     Furthermore, given the BIA’s explicit references to the
documentation submitted with the motion to reopen, a
reasonable fact-finder would not be compelled to conclude
that the BIA ignored any material evidence that Chen
submitted. See Wei Guang Wang, 437 F.3d at 275 (holding
that the BIA is not required to “expressly parse or refute
on the record each individual argument or piece of evidence
offered by the petitioner” as long as it “has given reasoned
consideration to the petition, and made adequate findings”)
(internal quotations omitted); see also Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
(presuming that the agency “has taken into account all of
the evidence before [it], unless the record compellingly
suggests otherwise.”).

     Accordingly, because Chen failed to demonstrate a
material change in country conditions, the BIA did not abuse
its discretion in denying his motion to reopen. See
8 U.S.C. § 1229a(c)(7)(C)(ii). The balance of Chen’s
arguments are foreclosed by our decision in Yuen Jin, 538
F.3d at 156.1

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for

      1
        Chen failed to exhaust his argument that the IJ
  made a factual error in finding that the agency had
  denied Chen’s first asylum application, which he withdrew
  with prejudice. See Lin Zhong v. U.S. Dep’t of Justice,
  480 F.3d 104, 118-20 (2d Cir. 2007). In any event,
  remand would be futile because the BIA properly denied
  Chen’s request to file a successive application. See
  Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338
  (2d Cir. 2006).
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oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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