11-2285

Chen v. Holder

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 12th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 DENNIS JACOBS,

9 PIERRE N. LEVAL,

10 Circuit Judges. 

11 ____________________________________

12

13 YA QING YANG v. HOLDER 11-1944

14 A073 562 612

15 ____________________________________ 16

17 XIU YAN LIN, AKA XIUYAN LIN 11-1993

18 v. HOLDER,

19 A097 660 210

20 ____________________________________

21

22 JIE LIN CHEN v. HOLDER, 11-2285

23 A070 893 349

24 ____________________________________

25

26 TIAN JIN ZOU v. HOLDER 12-177

27 A077 309 169

28 ____________________________________

29

30 JIAN LING CHEN v. HOLDER 12-1826

31 A097 740 324

32 ____________________________________

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2 SHAN YOU ZHENG v. HOLDER, 12-2136

3 A073 557 742

4 ____________________________________

5

6 KONG AN NI, AKA KONG-EN NI 12-2892

7 v. HOLDER,

8 A073 765 987

9 ____________________________________

10

11 LIN FEI XIE v. HOLDER 12-4675

12 A099 683 978

13 ____________________________________

14

15 YAN QIN CHEN, AKA SHI NI LIN 13-357

16 v. HOLDER,

17 A077 309 082

18 ____________________________________ 19

20 XIAO YAN WU, AKA XIAOYAN WU 13-1793

21 v. HOLDER, 

22 A075 955 399

23 ____________________________________

24

25 UPON DUE CONSIDERATION of these petitions for review of

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

27 ORDERED, ADJUDGED, AND DECREED that the petitions for review

28 are DENIED. 

29 Each of these petitions challenges a decision of the

30 BIA that: (1) affirmed a decision of an Immigration Judge

31 (“IJ”) denying a motion to reopen; (2) denied a motion to

32 reopen in the first instance; or (3) denied a motion to

33 reconsider the denial of a motion to reopen. The applicable

34 standards of review are well established. See Jian Hui Shao

35 v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008); see also Ke

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1 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90-91 (2d

2 Cir. 2001); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d

3 Cir. 2006).

4 Petitioners, all natives and citizens of China, filed

5 motions to reopen based on claims that they fear persecution

6 because they have had one or more U.S. citizen children in

7 violation of China’s population control program. For

8 largely the same reasons as this Court set forth in Jian Hui

9 Shao, 546 F.3d 138, we find no error in the agency’s

10 determinations that the petitioners failed to demonstrate

11 either materially changed country conditions that would

12 excuse the untimely or number-barred filing of their motions

13 or their prima facie eligibility for relief. See id. at

14 158-72. While the petitioners in Jian Hui Shao were from

15 Fujian Province, in Jie Lin Chen v. Holder, 11-2285 (3) and

16 Lin Fei Xie v. Holder, 12-4675 (8), petitioners are from

17 Zhejiang Province. However, as with the evidence discussed

18 in Jian Hui Shao, the evidence relating to Zhejiang Province

19 is insufficient because it does not discuss the use of force

20 in the enforcement of the family planning policy. See id.

21 at 160-61, 171-72. 

22

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1 In Xiu Yan Lin v. Holder, 11-1993 (2), Tian Jin Zou v.

2 Holder, 12-177 (4), Jian Ling Chen v. Holder, 12-1826 (5),

3 Lin Fei Xie v. Holder, 12-4675 (8), and Xiao Yan Wu v.

4 Holder, 13-1793 (10), we find no error in the agency’s

5 conclusions that petitioners failed to demonstrate

6 materially changed country conditions with regard to China’s

7 treatment of unregistered religious groups or Falun Gong

8 practitioners. See Jian Hui Shao, 546 F.3d at 169-72; see

9 also Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2008). 

10 In Yan Qin Chen v. Holder, 13-357 (9), the BIA did not err

11 in declining to credit the petitioner’s unauthenticated or

12 unsworn individualized evidence in light of the agency’s

13 underlying adverse credibility determination. See Qin Wen

14 Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007). 

15 Finally, in Jie Lin Chen v. Holder, 11-2285 (3), we

16 find no error in the agency’s conclusion that petitioner’s

17 motion to rescind the IJ’s in absentia deportation order was

18 untimely, see 8 U.S.C. § 1229a(b)(5)(C)(i); see also

19 8 C.F.R. § 1003.23(b)(4)(iii), and that she failed to

20 demonstrate due diligence in pursuing rescission based on

21 her ineffective assistance of counsel claim, see Rashid v.

22 Mukasey, 533 F.3d 127, 131 (2d Cir. 2008); see also Jian Hua

23 Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007). 

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1 For the foregoing reasons, these petitions for review

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

3 removal that the Court previously granted in these petitions

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

5 these petitions is DISMISSED as moot. Any pending request

6 for oral argument in these petitions is DENIED in accordance

7 with Federal Rule of Appellate Procedure 34(a)(2), and

8 Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

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