NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0706n.06 No. 10-3445 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT QI YANG CHEN , Petitioner,

v. ERI C H. HOL DER, J R., United States Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE BO ARD OF I MMI GRATI ON APPEAL S

OPI NI ON

Before: CLAY and STRANCH, Circuit Judges, and BARRETT, District Judge. * J ANE B. STRANCH, Circuit Judge

. L ike so many immigra tion petitioners, Qi Ya n g Ch en ’s p u rs u i t o f asy lum was complicated by the failing s of his initial attorney

. He enter ed the United States in 2002 and soug ht to apply for a sylum based on his past persec ution under China’s

coer cive birth control policy

. Unfort u n at el y fo r Chen, his attorney never filed a completed I -589 application for asy lum, a

nd afte r a number of continuance s an I mmigration J udg e denied all forms of relief as abandone d and adjudg ed Chen remova ble. Throug h new counsel, Chen has twice soug ht to reope n his proce eding s, and the Boa rd o f I mmigration Appea ls’ denial of his second moti on to reope n is the subject of this petition for revie w. Be cause Chen has not shown that he is elig ible for

The Honora

ble Michae l R. Ba

rre tt, United States District J udg e for the Southern District of * Ohio, sitti ng by

desig nation.No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral

an exception to the time bar or the numerica l bar for filing motions to reope n, we DENY his petition for r eview. I. BACKG ROUND A. F actual Background Chen is a Chinese national who enter ed the United States without permission in J uly 2002. Many y ear s befor e, in May 1990, Chen marrie d Yun Ru Xu in China. Acc ording to Chen, Xu g ave birth to their first child, a baby g irl, on March 1 , 1 9 9 1

. After their daug hter’s birth, Chinese authorities requ i re d Xu t o be implanted with an I UD to preve nt another pregnancy . She also underw ent regular g y

necolog ical examinations to ensure that she and Chen wer e in compliance with

a Chinese law that require d couples to wait five y ear s afte r the birth of a daug hter to have a second child. I n September 1991, Chen and Xu paid a private doctor to remove the I UD, and Xu beca me preg nant in October of that y ear . Xu went into hiding in a n ei gh b o ri n g village , and Chen left for Fuzhou City to avoid detec tion by Chinese offic ials. Howeve r, Chinese off icials discover ed Xu’ s wher eabouts, trashed their house, and forc ibly aborte d Xu’s 6-month-old fetus. The couple was also fined 300 y

uan. I n 1995, Chen and Xu we re gra n t ed a birth permit, and on J uly 19, 1996 Xu g ave birth to their second child, a son. Xu was order ed sterilized, but low blood pressure preven t ed her safe sterilization. I nstead, officia ls forc ed Chen to underg o a vasec to my in September 1996. I n J uly 2002, six y ear s afte r h i s sterilization, Chen obtained a falsified Chinese passport and U.S. tourist visa, seeming ly with the assistance of human traff icker s, and enter ed the United States throug h the 2No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral port of Detroit. Chen was detained in the airport, sent to an immigra tion detention fac ility in Detroit, then par oled. While he was in t he United States, Chen’s family alleg edly rec eived a

nd forwa rded to Chen a notice from the Birth Control Offic e of L ang Qi Town, China, dated September 15, 2009, informing Chen and Xu that, “[a]ccording to the rele vant Population and Family Planning policies and the combined situation of y our fam i l y , y o u r family has been deter mined to impose a fine of RMB 30,000.” 1 B. P roce dural Hi story Chen applied for asy lum while in detention. He first appea red befor e an I mmigration J udg e (“I J ”) on S ep t ember 23, 2002 via video teleconf ere nce from detention. Due to difficulties

co mmunicating with his attorney , his hear ing was continued twice. Chen’s attorney submit t ed a For m I -589 application for asy lum on his behalf pr ior to his November 21 te lephonic hea ring , but informed the court that the application was incomplete and that he and Chen neede d additional time to confe r. The hear ing was continued a third time to Dec ember 17. Be cause no completed asy lum petition was filed, the I J found that Chen had a bandoned his application for asy lum a nd denied a ll forms of r elief f

rom remova l. Chen appea led to the Boa rd of I mmigration Appea ls (“B I A”) on the g rou n d s that his application was complete and that his attorney had not been permitted to participa te telephonica lly
at the Dec ember hear ing. Be cause Chen’s attorney failed to file a written brief in addition to the Notice of Appea l, the BIA dismiss ed Chen’s appea l on May 21, 2003. On Marc h 12, 2007, throug h

30,000 RMB is roug hly

$4,700 U.S. dollars. 1 3No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral

new counsel, C h en fi l ed a motion to reope n his remova l proce eding s befor e the BI A based on ineffe ct i v e as s i s t an ce of his prior counsel. On April 30, 2007, the BI A denied the motion as untimely , holding that the 90-day re gu l at o ry filing period was not tolled beca use Chen did not exercise du e d i l i gen ce in pursuing his claim for asy lum afte r discovering in 2005 that his former attorney was inef fec tive. On Fe bruar

y 8, 2010, Chen’s counsel filed a sec o nd motion to reope n his remova l proce eding s and a motion to stay remova l. Chen soug ht reope ning based on “new evidenc e that is materia l and was not previously available , and on the g rounds of chang ed country conditions.” He also soug ht “sua sponte reope ning of th es e p ro cee dings based upon an eg reg ious err or by I mmigration J udg e Eliz abeth A. Hac ker.” On Marc h 19, 2010, the BI A denied the motion to reope n, finding it violated the time and number limit ations for motions to reope n pursuant to 8 C.F.R. § 1003.2. I t is from this order that Chen now a ppeals. 2 3 II. DISCUSS ION A. Stand ard of Review

I t also denied his motion for a stay of re moval. 2 Chen does not appea l the BIA’s denial of his motion to reopen remova l proce eding s sua 3 sponte based on the I J ’s alleg ed err o r in misconstruing the prior I J ’s holding at the November hear ing, and thus it is waived. See Miller v. Admin. Office of the Courts , 448 F.3d 887, 893 (6th Cir. 2006). Reg ardle ss, this Court lacks jurisdiction to hear that argument. See Gor v. Holder , 607 F.3d 180 , 187 (6th Cir. 2010) (noting that “the decision whether to reope n was within the BI A’s discretion, and

. . . the court ha[s] no jurisdiction to revie w [t hat] administrative decision”) (interna l citations and quotations omitted). 4No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral The BIA’s denial of a motion to reope n pursuant t o 8 C.F.R. § 1003.2 is revie wed by this Court for an abuse of discretion. Gordillo v. Holder , 640 F.3d 700, 702 (6th Cir. 2011). “The BI A abuses its discretion when it acts arbitra rily , irrationally , or contra ry to law.” Alizoti v. Gonzales , 477 F.3d 448, 451 ( 6th Cir. 2007). B. Chen’s Successive, Untim ely Mot ion to Reopen Rem oval P roce edings Chen argues that the BI

A’s denial of th e m o t i o n t o reope n his remova l proce eding s is contra ry to established ex ceptions to the time and numer ical bar s on such motions and contrar y to binding case law on perse cution and prima fac ie entitlement to asy lum. Be cause we hold that Chen is not exempt from the time and numerical l imitations on motions to reope n, we need not addre ss the suffic iency

of his prima fa cie c ase f

or re lief fr om removal. M o t i ons to reope n remova l proce eding s are subject to numerica l and time limit atio n s . Congr ess has g rante d aliens t he right t o file one motion to reope n remova l proce eding s. 8 U.S.C. § 1 2 2 9 a( c)( 7)(A)

. This numerica l limit ation does not apply to a motion to apply or rea pply fo r asy lum “base d on chang ed circumstance s arisi n g i n t h e country of nationalit y or i n the country to which deporta tion has been order ed, if such evidenc e is materia l and was not available and could not have been discovere d or prese nted at the p re v i o u s hear ing.” 8 C.F.R. § 1003.2(c) (3)( ii). Comparably , a m o t i o n to reope n must be filed within 90 day s of the date of entry of the final administrative order of remova l. 8 U.S.C. § 1229a(c )(7) (C)(i). This deadline does not apply if the motion rela tes to an asy lum application and that application “is based on chang ed country conditions arising in the country of nationali t y o r t h e country to which remova l has been order ed, if such

5No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral evidenc e is materia l and was not available and would not ha ve been discovere d or prese nted at the previous proc eeding .” 8 U.S.C. § 1229a(c )(7) (C)(ii). 4 Chen’s sec ond motion to reope n is subject to both the time and numerica l bars. Howe ver, Chen arg ues that those bars do not apply to him, as he has prese nted materia l, previously unavailable evidenc e of chang ed circ umstances. The g overnme nt respo n d s t h at Chen’s evidenc e is not of chang ed country conditions, but of chang ed persona l circ umstances, which cannot support a motion to reope n remova l proce eding s. We ag ree . 1. Time Bar This Court has spoken on the leg al d i s t inction betwee n chang ed country conditions and chang ed persona l circ umstances. “Without evidenc e of chang ed coun t ry co nditions, howeve r, [P etitioner’s] evidenc e of chang ed persona l ci rc u m stance s is insufficient to war rant reope ning proce eding s. ” Liu v. Holder , 560 F.3d 485, 492 (6th Cir. 2009). The fine notice supplied by Chen does not provide evidenc e of chang ed country conditions and, thus, does not support Chen’s petition for r eview. 5

The statutory section of the I mmigration and Nationality Act reg arding reope ning 4 proce eding s contains the exception to the 90-day time bar. A subsequent reg ulatory provision promulg ated by

the ag ency

contains exceptions to both the time and numerica l bars to filing . The reg ulation c opies the statutory provision nearlyverbatim. Compare 8 U.S.C. § 1229a(c )(7) (C)(ii) (“The re is no time limit on t he fili ng of a motion to reope n if

. . . [i t] is based on changed c ountry conditions arising in the country of nationality

. . . .”) with 8 C

. F. R

. § 1 0 03.2 (“The time and numerical limit ations set forth

. . . shall not apply to a motion to reope n . . . based on changed circumstance

s arising in the country

of nationality

. . . .”) ( emphasis adde d). The BIA discounted this fine notice beca use it had not been authentica ted pursuant to 8 5 C.F.R § 1287.6 and also beca use it does not show chang ed country conditions. T h e go v er n ment conce ded at oral argument that § 1287.6 does not provide th e o n l y m eans for authenticating 6No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral Chen also points to country repor ts and news article s he prese nted to the BI A showing incre ased enfor ceme nt of the Chinese Birth Control Policy , but thes e d o cu m en t s do not show chang ed country conditions sufficie nt to conclude that the BI A abused its discretion in disreg arding them. As discussed by the Seventh Circuit, the 2002 Population and Fa mily Planning Ordinanc e of Fujian Pro v i n ce, wher e Chen lived and his family continues to live, did indicate an incre ase in enfor ceme nt at the l ocal leve l. Lin v. Mukasey , 532 F.3d 596, 597 ( 7th Cir. 2008). Howeve r, this ordinanc e p redates Chen’s remova l proce eding s, and thus it cannot be evidenc e of a chang e in country conditions that was previously unavailable

. The more rec ent article s submitt ed by Chen do not indicate any signific ant chang e in country conditions with reg ard to China’s one-c hil d p o l i cy , nor does Chen a

rg ue as muc h in his appellate brie f. 2. Num eric al Bar Although the lang uag e of the regulatory numerica l bar differ s somewhat from the lang uag e of the statutory time bar, this Court has interpre ted the time b ar an d n u m erical bar identically , to require chang ed country , not persona l, conditions. See, e.g. , Liu v. Holder , No. 09-4494, 2011 U.S. App. L EXI S 3864, *15 (6th Cir. F eb. 28, 2011); W ang v. Holder , 359 F. App’ x 589, 596 (6th Cir. Dec

. 29, 2009); accord Guan v. Bd. of Immigration Appeals , 345 F.3d 47, 49 (2d Cir. 2003) (holding

documents in immigra tion proce eding s. That position is consistent with this Court’s adoption of the First Circuit’s holding in Y ongo v. INS , 355 F.3d 27 (1st Cir. 2004), reg arding authentica tion. See Rex ha v. Gonzales , 165 F. App’x 413, 419 (6th Cir. J an. 31, 2006) (“8 C.F.R. § 287.6 offe rs one, but not the exclusive, method for authenticating a document in an I NS proce eding .” (quoting Y ongo , 355 F.3d at 35). Thus, the BI A’s holdi ng that the fi ne noti ce had not been properly authentica ted was contra ry to our case law. Howeve r, the B I A’s alter native g round for

discounting the fine notice is nonetheless c orre ct, as it does not show cha ng ed countr

y conditions. 7No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral that “evide nce . . . of chang ed persona l circ umstances

. . . does not f it unde r the exception set forth i n 8 C.F.R. § 3.2(c) (3)( ii)”). Thus, for the same rea sons Chen’s motion is time-barred , i t i s al s o numerica lly

barr ed. 6 C. Chen’s Motion to Stay Re m oval Chen filed a motion to stay his remova l contempora neo u sly with his petition for revie w, which the g overnme nt opposes. A ruling on this motion on the merits would have requir ed us to confr ont an issue of first impression in this Court. The second prong of the applicable test set forth in Nken v. Holder , 129 S. Ct

. 1 7 4 9 , 1 7 6 1 (2009), considers whether the petitioner will suffe r irrepa rable harm absent a stay

. I n immigration proce eding s, this prong of the Nken test is of particula r importance , as some forms of relief are available to aliens only when that alien is phy sically prese nt in the U.S. I n such a case , remova l would moot a petition for revie w, causing the alien irrepa

rable harm. Motions to reope n arguably prese nt such a situation, as the Attorney Gene ral’s regulations appea r to preve nt the age n cy fr o m enter taining motions to reope n remova l proce eding s by aliens who are not phy sically prese nt in the United States. See 8 C.F.R. § 1003.2(d). One of our sister circ uits has enter ed a well rea soned opinion holding this regulatio n invalid as contra ry to Congr essional intent evidenc ed in the enabling statute. See W illiams v. Gonzales 499 F.3d 329 (4th Cir

. 2 0 0 7). We need not resolve the issue of t he continuing validi ty of § 1003.2(d)

We note that “an alien may reque st permis s i o n t o file a succe ssive, untimely asy lum 6 application based upon chang ed circ umstances which materia lly eff ect [hi s] elig ibilit y for asy lum” under 8 C.F.R. § 208.4(a) (4). Guan , 345 F.3d at 49 (interna l citation and quotation marks omitted). The de finition of “cha

ng ed cir cumstance s” in § 208.4 includes cha ng ed per sonal circ umstances. 8No. 10-3445

Qi Y ang Chen v. Eric H

. Holder, Jr., United States Attorney Gene ral and its eff ect on our irrepa

rable harm analy sis beca

use Chen’s motion is now mooted by our denial of his petition for re view. III. CONCLUSION For the fore g oing rea sons, we DENY the petition for revie w, and also DISMISS the motion for a stay of re moval as moot.

9