10-768-ag

Qiyao Chen v. Holder

BIA

A095 377 030

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 30th day of November, two thousand eleven.

PRESENT:

 GUIDO CALABRESI,

REENA RAGGI,

RICHARD C. WESLEY,

 Circuit Judges. 

_______________________________________

QIYAO CHEN,

Petitioner, 

 v. 10-768-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Adedayo O. Idowu, New York, New

York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Anthony P. Nicastro, Senior

Litigation Counsel; Dana M.

Camilleri, Trial Attorney, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

Petitioner Qiyao Chen, a native and citizen of the

People’s Republic of China, seeks review of a February 2,

2010, order of the BIA denying his motion to reopen. In re

Qiyao Chen, No. A095 377 030 (B.I.A. Feb. 2, 2010). We

assume the parties’ familiarity with the underlying facts

and procedural history of this case.

We have reviewed the BIA’s denial of Chen’s motion to

reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006). Ordinarily, an alien may only file

one motion to reopen and must do so within 90 days of the

final administrative decision. 8 U.S.C. § 1229a(c)(7); 8

C.F.R. § 1003.2(c)(2). Although Chen’s fourth motion before

the BIA was indisputably untimely and number-barred, there

is no time or numerical limitation if the alien establishes

materially “changed country conditions arising in the

country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

8 C.F.R. § 1003.2(c)(3)(ii). 

I. Family Planning

The BIA did not abuse its discretion in finding that
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Chen failed to establish a material change in the Chinese

government’s enforcement of the family planning policy or

his prima facie eligibility for relief based on the birth of

his U.S. citizen children. Chen’s arguments are foreclosed

by our decision in Jian Hui Shao v. Mukasey, 546 F.3d 138

(2d Cir. 2008). 

The notice Chen submitted from the Lianqi Town Family

Planning Office was not material to his claim because it

merely referenced the policy’s mandatory sterilization

requirement without indicating that such sterilizations are

performed by force, see id. at 165, 172, and the BIA did not

err in giving the notice reduced weight in light of the

immigration judge’s underlying adverse credibility

determination, see Qin Wen Zheng v. Gonzales, 500 F.3d 143,

147 (2d Cir. 2007). With respect to the letter from Chen’s

mother suggesting that the family planning policy had become

stricter for individuals returning with foreign-born

children, the BIA did not err in finding that this

“anecdotal” statement, In re Qiyao Chen, No. A095 377 030,

slip op. at 3, was insufficient to overcome the country

conditions evidence in the record indicating that the

Chinese government’s enforcement of the family planning

policy had not materially changed since the time of Chen’s
4

prior hearing. See Jian Hui Shao, 546 F.3d at 171 (“We do

not ourselves attempt to resolve conflicts in record

evidence, a task largely within the discretion of the

agency”). Furthermore, the letter from Chen’s friend, in

which he claimed that he was “intimidated and harassed” by

family planning officials when he returned to Lianqi town

after fathering two children in the United States, did not

indicate that the mistreatment he suffered rose to the level

of persecution, nor did he claim that he was sterilized,

forcibly or otherwise. See id. at 165, 172. Furthermore,

the events the friend described occurred in 2003, several

months before Chen filed his first motion to reopen with the

BIA in May 2004. See 8 C.F.R. § 1003.2(c)(1) (requiring

motions to reopen to be based on new and previously

unavailable evidence). 

Finally, the BIA was not be compelled to conclude that

Chen demonstrated a reasonable possibility that the

imposition of fines for the birth of his children would

cause him severe harm amounting to economic persecution. 

See In re T-Z-, 24 I. & N. Dec. 163, 170-75 (B.I.A. 2007);

see also Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d

61, 70 (2d Cir. 2002) (determining that the agency

reasonably concluded that the petitioner failed to
5

demonstrate economic persecution when he did not present any

testimony or other evidence of his income in China, his net

worth at the time of the fines, or any other facts that

would make it possible to evaluate his personal financial

circumstances in relation to the fines imposed by the

government); Jian Hui Shao, 546 F.3d at 161-62, 164 & n.25

(finding that the 2006 Country Report did not compel the

conclusion that an alien had demonstrated a reasonable

possibility of facing severe economic compulsion to submit

to sterilization and noting that the BIA had reasonably

concluded that the petitioners would face moderate fines not

amounting to persecution for any violation of the family

planning policy).

II. Christianity

The BIA also did not abuse its discretion in finding

that Chen failed to establish material changed country

conditions with respect to the Chinese government’s

treatment of practicing Christians. Although Chen argues

that he “submitted Country Reports [from] China reflecting

changed (worsen[ed]) circumstances regarding China’s

religious freedom,” Pet’r’s Br. at 22, as the BIA noted, the

2008 U.S. State Department Country Report on China that Chen

proffered stated that “freedom to participate in religious

activities continued to increase in many areas,” and that
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“[i]n [some] areas hundreds of members of unregistered

groups or house churches met openly with local authorities’

full knowledge.” In re Qiyao Chen, No. A095 377 030, slip

op. at 4. Chen did not submit any evidence before the BIA

discussing the treatment of Christians in his home province

of Fujian. Thus, the BIA did not abuse its discretion in

determining that he failed to demonstrate a material change

in the Chinese government’s treatment of Christians in

Fujian Province. See Qin Wen Zheng, 500 F.3d at 149. 

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 DISMISSED 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