Chun Xian Chan v. United States Department of Justice
Chun Xian Chan v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
Petitioner Chun Xian Chan, a native and citizen of the People’s Republic of China, seeks review of a September 12, 2007 order of the BIA denying her motion to reopen. In re Chun Xian Chan a.k.a. Lai Kuen Low, No. A77 957 857 (B.I.A. Sep. 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). “An abuse of discretion may be found ... where the [BIA’s] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). In reviewing the BIA’s denial of a motion to reopen, we remain mindful of the Supreme Court’s admonition that motions to reopen are “disfavored.” See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992).
We conclude that the BIA did not abuse its discretion in denying Chan’s motion to reopen as untimely and numerically barred. Chan’s second motion to reopen was more than two years after the BIA’s October 2004 decision affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and relief under the Convention Against Torture. Moreover, the BIA properly found that Chan failed to show that her motion to reopen met an exception to the time and numeri
Chan argues that the family planning policy will apply to her in a different manner than before she gave birth to two children in the United States, and that such a difference amounts to a change in country conditions. That argument is unavailing. Merely refraining her change in personal circumstances as a change in country conditions in China does not bring Chan’s motion within the exceptions to the time and numerical limitations for motions to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per curiam).
Furthermore, we find that the BIA did not abuse its discretion in concluding that Chan failed to “show a material change in the family planning policy of the Fujian Province.” See 8 C.F.R. § 1003.2(c)(3)(ii). As the BIA properly noted, much of Chan’s evidence predated her October 2002 hearing. Thus, it was not new or previously unavailable. See 8 C.F.R. § 1003.2(c)(1). Regardless, these documents did not show changed country conditions in China.
As the BIA observed, neither the May 2003 U.S. Department of State Consular Information Sheet for China nor the March 2006 notice issued by the Fujian Provincial Population and Family Planning Office (“2006 notice”)
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).
. This notice was not issued to Chan. Rather, it was purportedly issued to an individual named Yu He Zheng.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.