Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder Jr. is

automatically substituted for former Attorney General

Alberto R. Gonzales as respondent in this case.

07-3715-ag

Sun v. Holder

BIA

A073 583 412

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 16 day of February, two thousand ten. th

PRESENT:

ROSEMARY S. POOLER,

BARRINGTON D. PARKER,

RICHARD C. WESLEY,

Circuit Judges.

_________________________________________

MEICHANG SUN,

Petitioner, 

 v. 07-3715-ag

NAC

ERIC H. HOLDER JR., UNITED STATES 

ATTORNEY GENERAL,*

Respondent.

_________________________________________

FOR PETITIONER: Matthew L. Guadagno; Jules E. Coven;

Kerry W. Bretz, Bretz & Coven, LLP,

New York, New York.
2

FOR RESPONDENT: Michael F. Hertz, Acting Assistant

Attorney General; Linda S. Wernery,

Assistant Director; William C.

Minick, Attorney, Office of

Immigration Litigation, United States

Department of Justice, Washington,

D.C.

UPON DUE CONSIDERATION of this petition for review of a

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

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

is DENIED. 

Petitioner Meichang Sun, a native and citizen of the

People’s Republic of China, seeks review of a July 31, 2007

order of the BIA denying her motion to reopen. In re

Meichang Sun, No. A073 583 412 (B.I.A. July 31, 2007). We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

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

abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

Cir. 2005) (per curiam). There is no dispute that Sun’s

April 2007 motion to reopen was untimely where the BIA

issued a final order of removal in June 2002. See 8 C.F.R. 

§ 1003.2(c)(2). However, there is no time limit for filing a

motion to reopen if it is “based on changed circumstances

arising in the country of nationality or in the country to
3

which deportation has been ordered, if such evidence is

material and was not available and could not have been

discovered or presented at the previous hearing.” 8 C.F.R.

§ 1003.2(c)(3)(ii). In this case, the BIA reasonably found

that Sun’s motion to reopen did not qualify for such an

exception. 

It is well-settled that the birth of U.S. citizen

children is not evidence of changed conditions in China.

See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129,

130-31 (2d Cir. 2005)(per curium) (finding that the birth of

U.S. citizen children constitutes a change in personal

circumstances, not a change in country conditions, and

therefore does not establish an exception to the filing

deadline for motions to reopen). Moreover, because the BIA

reasonably found speculative Sun’s claim that she violated

the family planning policy by having one child, her evidence

suggesting that violators of the family planning policy are

subjected to economic persecution was not material to her

case. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

Cir. 2005) (holding that “[i]n the absence of solid support

in the record for [an applicant’s] assertion that [s]he will

be [persecuted], h[er] fear is speculative at best”). 
4

Accordingly, the BIA did not abuse its discretion in finding

that Sun failed to demonstrate changed country conditions

excusing the untimeliness of her motion to reopen. See 

8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA,

437 F.3d 270, 273-74 (2d Cir. 2006).

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk