Xie Jian Chen v. Holder

U.S. Court of Appeals for the Second Circuit
Xie Jian Chen v. Holder, 548 F. App'x 10 (2d Cir. 2013)
Carney, Dennis, Jacobs, Leval, Pierre, Susan

Xie Jian Chen v. Holder

Opinion

*11 SUMMARY ORDER

Petitioner Xie Jian Chen, a native and citizen of China, seeks review of a May 29, 2012 decision of the BIA denying his motion to reopen his removal proceedings. In re Xie Jian Chen, No. A072745900 (B.I.A. May 29, 2012). 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. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). An alien seeking to reopen proceedings must file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(2). There is no dispute that Chen’s motion to reopen, filed in 2011, was untimely, because the BIA issued a final order of removal in Chen’s case in 2002.

Chen contends, however, that he has established materially changed country conditions excusing his untimely motion to reopen. See 8 U.S.C. § 1229a(e)(7)(C)(ii). Chen’s argument that reopening is warranted based on generally worsening country conditions for Christians in China is unexhausted because he did not raise it before the BIA. We therefore decline to consider it. Cf. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 120 (2d Cir. 2007).

Chen also alleges that the Chinese government recently intercepted mail to his parents containing Chen’s criticism of the government’s treatment of Christians, and that as a result, village officials visited his parents’ house and issued a notice ordering him to report for punishment. The BIA did not abuse its discretion in finding that Chen did not establish materially changed country conditions on this basis, as the BIA did not err in giving little evidentiary weight to the documents Chen submitted in support of his motion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight accorded to evidence lies largely within the agency’s discretion). The BIA did not abuse its discretion in declining fully to credit handwritten documents from China that were not notarized or authenticated by any means, or affidavits that were not based on first-hand knowledge, or in rejecting Chen’s arguments that he should not be required to authenticate the documents. See Xiao Ji Chen, 471 F.3d at 341-42; Shunfu Li v. Mukasey, 529 F.3d 141, 149 (2d Cir. 2008).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.

Reference

Full Case Name
XIE JIAN CHEN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent
Cited By
2 cases
Status
Unpublished