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Ya Ying Chen v. Holder
Citation: 349 F. App'x 564Docket: No. 08-6244-ag
Court: Court of Appeals for the Second Circuit; October 16, 2009; Federal Appellate Court
Ya Ying Chen, a citizen of China, seeks judicial review of a December 4, 2008 BIA order that denied her motion to reopen her immigration case. The reviewing court does not agree to the government's request for summary dismissal of her petition, recognizing it as non-frivolous. However, the court ultimately denies Chen's petition for review, finding no error in the BIA's decision. Chen's July 2008 motion to reopen was deemed untimely, as it was submitted more than five years after the BIA's final removal order in December 2002. While there are exceptions for motions based on changed circumstances in the country of nationality, the BIA concluded that Chen's motion did not meet these criteria. Chen failed to contest the BIA's finding regarding the lack of demonstrated changed conditions in China due to the birth of her two U.S. citizen children. Chen's primary argument was that the BIA abused its discretion by not sufficiently explaining its rejection of a notice from the Lingnan Village Committee, which suggested local authorities were aware of her Falun Gong practice in the U.S. The court states that the BIA is not required to address every argument in detail and presumes the agency considers all evidence unless proven otherwise. The BIA's summary rejection of Chen's evidence as not demonstrating changed circumstances was upheld, as it routinely encounters similar claims regarding Chinese government notices demanding the return of nationals for alleged violations of Chinese laws. The Board of Immigration Appeals (BIA) did not err in rejecting Chen's unauthenticated notice as evidence of changed circumstances, particularly given its finding that her fear of persecution was implausible. The precedent set in Qin Wen Zheng v. Gonzales allows the agency to disregard documentary evidence from an alien previously deemed not credible. Chen's claim that local officials discovered her Falun Gong practice through photographs taken by unidentified nationals in New York was deemed implausible. Consequently, the BIA acted within its discretion in denying Chen's motion to reopen due to untimeliness. The Respondent's motion for summary disposition is denied, and the petition for review is also denied. The court vacates any previously granted stay of removal and dismisses any pending motions for stay as moot. Requests for oral argument are denied under Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(b).