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.

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,

on the 17th 4 day of October, two thousand thirteen.

5

6 PRESENT:

7 DENNIS JACOBS,

8 DENNY CHIN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 GUO REN CHEN,

14 Petitioner, 

15

16 v. 12-2495

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, NY.

24

25 FOR RESPONDENT: Stuart F. Delery, Principal Deputy

26 Assistant Attorney General; Douglas

27 E. Ginsburg, Assistant Director;

28 Franklin M. Johnson, Jr., Trial

29 Attorney, Office of Immigration

30 Litigation, United States Department

31 of Justice, 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 Guo Ren Chen, a native and citizen of China,

6 seeks review of a May 31, 2012 decision of the BIA denying

7 his motion to reopen his deportation proceedings. In re Guo

8 Ren Chen, No. A072 780 421 (B.I.A. May 31, 2012). We assume

9 the parties’ familiarity with the underlying facts, the

10 procedural history, and the issues on appeal.

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 must move to reopen no later than 90 days after

15 the date on which the final administrative decision was

16 rendered and is permitted to file only one such motion. See

17 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2). 

18 Chen’s order of deportation became final in 1995; so there

19 is no dispute that Chen’s second motion to reopen, filed in

20 2011, was untimely and number-barred. See 8 U.S.C. §

21 1101(a)(47)(B)(ii). 

22 Chen alleges that he has become a devout Christian, and

23 that the Chinese government’s intensified crackdown on

2
1 Chinese Christians constitutes a material change in country

2 conditions excusing his motion from the applicable time and

3 numerical limitations. See 8 U.S.C. § 1229a(c)(7)(C)(ii);

4 8 C.F.R. § 1003.2(c)(3). 

5 The BIA did not abuse its discretion in finding that

6 Chen failed to demonstrate a material change of conditions

7 in China. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

8 (2d Cir. 2008); see also In re S-Y-G, 24 I. & N. Dec. 247,

9 253 (B.I.A. 2007) (“In determining whether evidence

10 accompanying a motion to reopen demonstrates a material

11 change in country conditions that would justify reopening,

12 [the BIA] compares the evidence of country conditions

13 submitted with the motion to those that existed at the time

14 of the merits hearing below.”). The BIA explicitly compared

15 evidence of current conditions in China to those that

16 existed at the time of Chen’s deportation proceedings and

17 reasonably determined that the evidence reflected a

18 continuation of suppression rather than a material change. 

19 Therefore, because the BIA’s inference that conditions in

20 China have not materially changed “is tethered to the

21 evidentiary record, we will accord deference to the

22 finding.” See Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir.

3
1 2007) (“[S]upport for a contrary inference – even one more

2 plausible or more natural – does not suggest error.”). 

3 Because Chen’s motion was defeated by the time and

4 number limitations, we do not address his prima facie

5 eligibility for asylum, withholding of removal, and relief

6 under the Convention Against Torture. See INS v.

7 Bagamasbad, 429 U.S. 24, 25 (1976). 

8 For the foregoing reasons, the petition for review is

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

10 removal that the Court previously granted in this petition

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

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

13 oral argument in this petition is DENIED in accordance with

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

15 Circuit Local Rule 34.1(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

4