Meichang Sun v. Holder

Second Circuit

Meichang Sun v. Holder

365 F. App'x 296

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 16, 2010

Docket07-3715-ag

StatusUnpublished

This text of 365 F. App'x 296 (Meichang Sun v. Holder) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Meichang Sun v. Holder, 365 F. App'x 296 (2d Cir. 2010).

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SUMMARY ORDER

Petitioner Meichang Sun, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2007 order of the BIA denying her motion to reopen. In re Meichang Sun, No. A073 583 412 (B.I.A. July 31, 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. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). There is no dispute that Sun’s April 2007 motion to reopen was untimely where the BIA issued a final order of removal in June 2002. See 8 C.F.R. § 1003.2(c)(2). However, there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). In this case, the BIA reasonably found that Sun’s motion to reopen did not qualify for such an exception.

It is well-settled that the birth of U.S. citizen children is not evidence of changed conditions in China. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005)(per curiam) (finding that the birth of U.S. citizen chil *298 dren constitutes a change in personal circumstances, not a change in country conditions, and therefore does not establish an exception to the filing deadline for motions to reopen). Moreover, because the BIA reasonably found speculative Sun’s claim that she violated the family planning policy by having one child, her evidence suggesting that violators of the family planning policy are subjected to economic persecution was not material to her case. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (holding that “[i]n the absence of solid support in the record for [an applicant’s] assertion that [s]he will be [persecuted], h[er] fear is speculative at best”). Accordingly, the BIA did not abuse its discretion in finding that Sun failed to demonstrate changed country conditions excusing the untimeliness of her motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).

For the foregoing reasons, the petition for review is DENIED.

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SUMMARY ORDER

Petitioner Meichang Sun, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2007 order of the BIA denying her motion to reopen. In re Meichang Sun, No. A073 583 412 (B.I.A. July 31, 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. See Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). There is no dispute that Sun’s April 2007 motion to reopen was untimely where the BIA issued a final order of removal in June 2002. See 8 C.F.R. § 1003.2(c)(2). However, there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). In this case, the BIA reasonably found that Sun’s motion to reopen did not qualify for such an exception.

It is well-settled that the birth of U.S. citizen children is not evidence of changed conditions in China. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005)(per curiam) (finding that the birth of U.S. citizen chil *298 dren constitutes a change in personal circumstances, not a change in country conditions, and therefore does not establish an exception to the filing deadline for motions to reopen). Moreover, because the BIA reasonably found speculative Sun’s claim that she violated the family planning policy by having one child, her evidence suggesting that violators of the family planning policy are subjected to economic persecution was not material to her case. Cf. Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (holding that “[i]n the absence of solid support in the record for [an applicant’s] assertion that [s]he will be [persecuted], h[er] fear is speculative at best”). Accordingly, the BIA did not abuse its discretion in finding that Sun failed to demonstrate changed country conditions excusing the untimeliness of her motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).

For the foregoing reasons, the petition for review is DENIED.

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