11-1405-ag

Chen v. Holder

BIA

A078 293 062

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 1st day of February, two thousand twelve.

PRESENT:

DENNIS JACOBS,

Chief Judge,

DEBRA ANN LIVINGSTON,

DENNY CHIN,

 Circuit Judges.

_________________________________________

XIU XING CHEN,

Petitioner, 

 v. 11-1405-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_________________________________________

FOR PETITIONER: Stuart Mitchell Lewis Altman,

Westfield, New Jersey. 

FOR RESPONDENT: Tony West, Assistant Attorney

General; William C. Peachey,

Assistant Director, Office of

Immigration Litigation; Mona Maria

Yousif, Attorney, Office of
2

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 Xiu Xing Chen, a native and citizen of the

People’s Republic of China, seeks review of the March 25,

2011, order of the BIA denying her motion to reopen. In re

Xiu Xing Chen, No. A078 293 062 (B.I.A. Mar. 25, 2011). We

assume the parties’ familiarity with the underlying facts

and procedural history of the case. 

The BIA’s denial of Chen’s motion to reopen as untimely

and number-barred was not an abuse of discretion. See Kaur

v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An

alien may file one motion to reopen, generally no later than

ninety days after the date on which the final administrative

decision was rendered in the proceedings sought to be

reopened. 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i); 8

C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s 2010

motion was untimely and number-barred, as she previously

filed two motions to reopen, and the final administrative
3

order was issued in 2005. See 8 U.S.C. §§ 1229a(c)(7)(A),

1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although the

time limitation does not apply to a motion to reopen if it

is “based on changed circumstances arising in the country of

nationality or in the country to 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); see also 8

U.S.C. § 1229a(c)(7)(C)(ii), the BIA concluded that Chen

failed to establish changed circumstances for Christians

arising in China. 

Chen argues that she demonstrated an increase in

China’s persecution of underground Christian church members

since her 2003 merits hearing. The BIA’s determination that

the evidence failed to demonstrate changed circumstances in

China is supported by substantial evidence. See Jian Hui

Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing

the BIA's fact-finding regarding changed circumstances for

substantial evidence). While the background materials Chen

submitted noted an increase in the number of Christians

persecuted between 2006 and 2009, there is no indication of

the conditions that existed at the time of Chen’s 2003
4

merits hearing, or whether the increase in incidents

corresponded to a proportionate increase in church members. 

Furthermore, the 2009 reports from the State Department

provide that the Chinese government “continued to strictly

control religious practice,” suggesting similar treatment of

underground churches in previous years. Additionally, the

BIA did not err in affording minimal weight to Chen’s

mother’s statement that Chinese officials controlled

underground churches “more strictly recently” due to the

lack of corresponding dates or details. See Qin Wen Zheng

v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (holding that

"the BIA does not abuse its discretion in crediting the

State Department reports in the face of uncorroborated

anecdotal evidence to the contrary"). Substantial evidence

therefore supports the BIA’s finding that Chen did not

establish changed conditions for Christians in China.

Because the evidence Chen submitted was insufficient to

establish a change in country conditions, the BIA did not

abuse its discretion in concluding that she failed to meet

an exception to the filing requirements, and in consequently

denying her motion to reopen as untimely and number-barred. 

See 8 U.S.C. §§ 1229a(c)(7)(A), 1229a(c)(7)(C)(i)-(ii); 8
5

C.F.R. § 1003.2(c)(2)-(3). Contrary to Chen’s argument that

the BIA ignored evidence, the BIA explicitly addressed her

background materials in its decision, and did not err in

failing to cite each piece of evidence because substantial

evidence supports its findings. Xiao Ji Chen, 471 F.3d at

336 n.17. 

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 DENIED 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