10-1997-ag BIA Yan v. Holder A095 461 853 **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 

**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007 IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC DATABASE**  **( WITH THE NOTATION**  **“S UMMARY**  **O RDER**  **”). 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 Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of New 3 York, on the 21 stday of March, two thousand twelve. 4 5 PRESENT: ROSEMARY S. POOLER, 6 RICHARD C. WESLEY, 7 GERARD E. LYNCH, 8 Circuit Judges. 9 10 11 TIAN H. YAN, 12 Petitioner, 13 14 -v.- 10-1997-ag 15 NAC 16 ERIC H. HOLDER, JR., UNITED STATES 17 ATTORNEY GENERAL, 18 Respondent. 19 20 21 FOR PETITIONER: Peter S. Gordon, Forest Hills, N.Y. 22 23 FOR RESPONDENT: Tony West, Assistant Attorney General; 24 William C. Peachey, Assistant Director; and 25 Puneet Cheema, Trial Attorney; Office of 26 Immigration Litigation, Civil Division, 27 United States Department of Justice, 28 Washington, D.C. 29 30 **UPON DUE CONSIDERATION** , it is hereby **ORDERED, ADJUDGED,** 31

**AND DECREED**that the petition for review is **DENIED.** 322 Tian Hua Yan, a Chinese native and citizen, seeks review 1 of the BIA’s denial of his motion to reopen his removal 2 proceedings. We assume t he parties’ familiarity with the 3 underlying facts and procedural history. 4 We review BIA decisions on motions to reopen for abuse of 5 discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 6 2006). Yan’s second renewed motion to reopen was number 7 barred and untimely because he filed it more than five years 8 after his final removal order. See 8 U.S.C. 9 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Nevertheless, 10 the 90-day timeliness requirement does not apply to motions to 11 reopen based on changed country conditions, so long as the new 12 evidence is material, was previously unavailable, and could 13 not have been discovered and presented at the prior hearing. 14 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii). 15 Changed country conditions are distinct from changed personal 16 circumstances. See, e.g. , Wang v. BIA , 437 F.3d 270, 273-74 17 (2d Cir. 2006). 18 As a preliminary matter, we find Yan exhausted his claim 19 of deteriorating country conditions because he argued before 20 the BIA that China’s conditions had deteriorated before and 21 after the Olympics. Nevertheless, we conclude the BIA did not 22 abuse its discretion by rejecting Yan’s argument. 233 First, while Yan’s Falun Gong practice may have changed 1 his personal circumstances, it did not change the conditions 2 in China. Second, substantial evidence supports the BIA’s 3 findings that Falun Gong repression has been ongoing since 4 Yan’s 2003 hearing, so he could have, and should have, made 5 the argument then. While Yan suggests China increased 6 repression of Falun Gong practitioners in the lead up to the 7 Olympics, there is evidence that repression of Falun Gong 8 practitioners has been constant and ongoing since Yan’s 2003 9 hearing. Third, the BIA’s references to Yan’s submitted 10 evidence, “demonstrate that it has considered such evidence” 11 and rejected it. Wei Guang Wang v. BIA , 437 F.3d 270, 275 (2d 12 Cir. 2006). 13 To conclude, it was not an abuse of discretion to find no 14 changed country conditions and to deny Yan’s motion as 15 untimely. We have considered and reject Yan’s other 16 arguments. Yan’s petition for review is **DENIED.** 17

FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19