Yun Hui Chen v. Bureau of Citizenship & Immigration Services

Second Circuit

Yun Hui Chen v. Bureau of Citizenship & Immigration Services

307 F. App'x 583

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 27, 2009

DocketNo. 06-4075-ag

StatusPublished

This text of 307 F. App'x 583 (Yun Hui Chen v. Bureau of Citizenship & Immigration Services) 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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Yun Hui Chen v. Bureau of Citizenship & Immigration Services, 307 F. App'x 583 (2d Cir. 2009).

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Opinion

SUMMARY ORDER

Yun Hui Chen, a native and citizen of the People’s Republic of China, seeks review of an August 7, 2006 order of the BIA affirming the March 13, 2006 order of Immigration Judge (“IJ”) Sarah M. Burr denying his motion to reopen his proceedings to file a successive asylum application. In re Yun Hui Chen, No. A70 891 751 (B.I.A. Aug. 7, 2006), aff'g No. A70 891 751 (Immig. Ct. N.Y. City Mar. 13, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

When the BIA adopts and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

The Immigration and Nationality Act and its implementing regulations provide that an individual must file a motion to reopen within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This limitation, however, does not apply when the movant seeks reopening to apply for asylum or withholding of removal based on changed circumstances arising in his country of nationality, if the evidence submitted is material and was unavailable and undiscoverable at the time of his hearing before the IJ. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Here, it is undisputed that Chen’s motion to reopen was untimely-

Notwithstanding the untimeliness of his motion, Chen argues that he was authorized to file a successive asylum application under 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4 because the birth of his children in the United States constitutes changed circumstances that materially affect his eligibility for asylum. However, the BIA has rejected precisely this argument in a precedential decision. See Matter of C-W-L-, 24 I. & N. Dec. 346, 347 [585]*585(BIA 2007). We have accorded Chevron deference to that decision. See Yuen Jin v. Mukasey, 538 F.3d 143, 152 (2d Cir.2008). Because this case is squarely controlled by Matter of C-W-L- and Yuen Jin, Chen’s argument fails.

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SUMMARY ORDER

Yun Hui Chen, a native and citizen of the People’s Republic of China, seeks review of an August 7, 2006 order of the BIA affirming the March 13, 2006 order of Immigration Judge (“IJ”) Sarah M. Burr denying his motion to reopen his proceedings to file a successive asylum application. In re Yun Hui Chen, No. A70 891 751 (B.I.A. Aug. 7, 2006), aff'g No. A70 891 751 (Immig. Ct. N.Y. City Mar. 13, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

When the BIA adopts and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

The Immigration and Nationality Act and its implementing regulations provide that an individual must file a motion to reopen within ninety days of the issuance of a final administrative order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This limitation, however, does not apply when the movant seeks reopening to apply for asylum or withholding of removal based on changed circumstances arising in his country of nationality, if the evidence submitted is material and was unavailable and undiscoverable at the time of his hearing before the IJ. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Here, it is undisputed that Chen’s motion to reopen was untimely-

Notwithstanding the untimeliness of his motion, Chen argues that he was authorized to file a successive asylum application under 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4 because the birth of his children in the United States constitutes changed circumstances that materially affect his eligibility for asylum. However, the BIA has rejected precisely this argument in a precedential decision. See Matter of C-W-L-, 24 I. & N. Dec. 346, 347 [585]*585(BIA 2007). We have accorded Chevron deference to that decision. See Yuen Jin v. Mukasey, 538 F.3d 143, 152 (2d Cir.2008). Because this case is squarely controlled by Matter of C-W-L- and Yuen Jin, Chen’s argument fails.

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