12-2495 Chen v. Holder BIA A072 780 421 

### 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 17 th** **day of October, two thousand thirteen.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **DENNY CHIN,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **GUO REN CHEN,** 13 Petitioner**,** 14 15 **v. 12-2495** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 25 **Assistant Attorney General; Douglas** 26 **E. Ginsburg, Assistant Director;** 27 **Franklin M. Johnson, Jr., Trial** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Guo Ren Chen, a native and citizen of China, 5 seeks review of a May 31, 2012 decision of the BIA denying 6 his motion to reopen his deportation proceedings. In re Guo 7 Ren Chen, No. A072 780 421 (B.I.A. May 31, 2012). We assume 8 the parties’ familiarity with the underlying facts, the 9 procedural history, and the issues on appeal. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006) (per curiam). An alien seeking to reopen 13 proceedings must move to reopen no later than 90 days after 14 the date on which the final administrative decision was 15 rendered and is permitted to file only one such motion. See 16 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). 17 Chen’s order of deportation became final in 1995; so there 18 is no dispute that Chen’s second motion to reopen, filed in 19 2011, was untimely and number-barred.See 8 U.S.C. § 20 1101(a)(47)(B)(ii). 21 Chen alleges that he has become a devout Christian, and 22 that the Chinese government’s intensified crackdown on 23
2Chinese Christians constitutes a material change in country 1 conditions excusing his motion from the applicable time and 2 numerical limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 3 8 C.F.R. § 1003.2(c)(3). 4 The BIA did not abuse its discretion in finding that 5 Chen failed to demonstrate a material change of conditions 6 in China. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 7 (2d Cir. 2008); see also In re S-Y-G, 24 I. & N. Dec. 247, 8 253 (B.I.A. 2007) (“In determining whether evidence 9 accompanying a motion to reopen demonstrates a material 10 change in country conditions that would justify reopening, 11 [the BIA] compares the evidence of country conditions 12 submitted with the motion to those that existed at the time 13 of the merits hearing below.”). The BIA explicitly compared 14 evidence of current conditions in China to those that 15 existed at the time of Chen’s deportation proceedings and 16 reasonably determined that the evidence reflected a 17 continuation of suppression rather than a material change. 18 Therefore, because the BIA’s inference that conditions in 19 China have not materially changed “is tethered to the 20 evidentiary record, we will accord deference to the 21 finding.” See Siewe v. Gonzales , 480 F.3d 160, 168 (2d Cir. 22

32007) (“[S]upport for a contrary inference – even one more 1 plausible or more natural – does not suggest error.”). 2 Because Chen’s motion was defeated by the time and 3 number limitations, we do not address his prima facie 4 eligibility for asylum, withholding of removal, and relief 5 under the Convention Against Torture. See INS v. 6 Bagamasbad , 429 U.S. 24, 25 (1976). 7 For the foregoing reasons, the petition for review is 8 DENIED. As we have completed our review, any stay of 9 removal that the Court previously granted in this petition 10 is VACATED, and any pending motion for a stay of removal in 11 this petition is DISMISSED as moot. Any pending request for 12 oral argument in this petition is DENIED in accordance with 13 Federal Rule of Appellate Procedure 34(a)(2), and Second 14 Circuit Local Rule 34.1(b). 15
FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17

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