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Chen v. Holder

United States Court of Appeals, Second Circuit
May 6, 2009
326 F. App'x 599 (2d Cir. 2009)

Opinion

No. 07-4321-ag.

May 6, 2009.

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.

Gary J. Yerman, New York, NY, for Petitioner.

Jeffrey S. Bucholtz, Acting Assistant Attorney General, Civil Division; Mary Jane Candaux, Assistant Director, Office of Immigration Litigation; Michael C. Heyse, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: Hon. DENNIS JACOBS, Chief Judge, Hon. JON O. NEWMAN, Hon. PIERRE N. LEVAL, Circuit Judges.


SUMMARY ORDER

Petitioner Chun Chen, a native and citizen of the People's Republic of China, seeks review of a September 14, 2007 order of the BIA denying his motion to reopen. In re Chun Chen, No. A71 568 310 (B.I.A. Sep. 14, 2007). We assume the parties' familiarity with the underlying facts and procedural history in this case.

We review the BIA's denial of a motion to reopen for abuse of discretion. Alt v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA's factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We find that the BIA did not err in denying Chen's untimely motion to reopen.

Chen argues that the BIA erred in concluding that he failed to demonstrate material changed country conditions sufficient to excuse the time limitation for filing his motion to reopen or his prima facie eligibility for relief. However, these arguments fail where we have previously reviewed the BIA's consideration of similar evidence in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that "[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency"); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA must consider evidence such as "the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] . . . it may do so in summary fashion without a reviewing court presuming that it has abused its discretion"). Contrary to Chen's argument that the BIA erred in not affording the village notice he submitted more weight because it is a photocopy, we decline to find that the BIA abused its discretion where it properly noted that the document was not subject to forensic verification because it was a copy and was unauthenticated. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight afforded to documentary evidence lies largely within the discretion of the agency).

Chen waives any challenge to the BIA's finding that he was ineligible to file a successive asylum application based on his changed personal circumstances. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

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(b).


Summaries of

Chen v. Holder

United States Court of Appeals, Second Circuit
May 6, 2009
326 F. App'x 599 (2d Cir. 2009)
Case details for

Chen v. Holder

Case Details

Full title:CHUN CHEN, a.k.a. Chen Chun, a.k.a. Fu-Long Chen, Petitioner, v. Eric H…

Court:United States Court of Appeals, Second Circuit

Date published: May 6, 2009

Citations

326 F. App'x 599 (2d Cir. 2009)