08-4290-ag
Chen v. Holder
                                                                                BIA
                                                                        A072 483 714
                      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 8 th day of June, two thousand ten.

PRESENT:
         REENA RAGGI,
         PETER W. HALL,
         DENNY CHIN,
               Circuit Judges.
_______________________________________
FONG CHEN,
         Petitioner,

                 v.                                     08-4290-ag
                                                        NAC

ERIC H. HOLDER, Jr., U.S. ATTORNEY
GENERAL, *
           Respondent.
_______________________________________

FOR PETITIONER:                Henry Zhang, New York, New York.

FOR RESPONDENT:                Gregory G. Katsas, Assistant


             *
          Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Attorney General
    Michael B. Mukasey as respondent in this case.
                          Attorney General, Barry J.
                          Pettinato, Assistant Director,
                          Carmel A. Morgan, Trial 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.

    Petitioner Fong Chen, a native and citizen of the

People’s Republic of China, seeks review of an August 8,

2008 order of the BIA denying his motion to reopen his

exclusion proceedings.     In re Fong Chen, No. A072 483 714

(B.I.A. Aug. 8, 2008).     We assume the parties’ familiarity

with the underlying facts and procedural history of the

case.

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

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

(2d Cir. 2006).     An alien who has been ordered removed may

file one motion to reopen, but must do so within 90 days of

the relevant final administrative decision.     8 U.S.C.

§ 1229a(c)(7).    The 90-day filing deadline and numerical

limitation may be excused if the alien can establish


                                2
“changed country conditions arising in the country of

nationality.”   8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8

C.F.R. § 1003.2(c)(3)(ii).   Here, the BIA properly denied

Chen’s motion to reopen as untimely because he filed it

almost ten years after his June 1995 final order of removal.

See 8 C.F.R. § 1003.2(c)(2). 1

    Contrary to Chen’s argument, a reasonable fact-finder

would not be compelled to conclude that the BIA ignored any

of the evidence that he submitted.   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.”   Wei Guang Wang v.

BIA, 437 F.3d 270, 275 (2d Cir. 2006) (internal quotation

marks omitted); see also Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).   Here, the

BIA considered Chen’s evidence in some detail and concluded


       1
        Both Chen and the Government note that the BIA
  order under review failed to address our November 2007
  decision, which superseded an earlier June 2007 decision.
  Chen does not, however, suggest that this error
  constitutes a basis for remand. In any event, remand
  would be futile because, as the Government asserts, the
  BIA’s decision adequately addressed the concerns raised
  in the November 2007 decision. See Xiao Ji Chen v. U.S.
  Dep’t of Justice, 471 F.3d 315, 338-40 (2d Cir. 2006).

                                 3
that it did not demonstrate a material change in country

conditions.       Although Chen disputes that conclusion, his

arguments are foreclosed by this Court’s decision in Jian

Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir. 2008).

On this record, the BIA’s denial of Chen’s motion to reopen

was not an abuse of discretion. 2     See 8 U.S.C.

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

    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

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




          2
        We do not consider Chen’s argument that he faces
  economic persecution on account of his violation of the
  Chinese family planning policy, as the argument is
  unexhausted. See Lin Zhong v. U.S. Dep’t of Justice, 480
  F.3d 104, 119-20 (2d Cir. 2007).
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