NOT RECOMMENDED FOR PUBLICATION File Name: 21a0160n.06 No. 20-3980 UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 25, 2021 ) TONG CHEN, DEBORAH S. HUNT, Clerk ) Petitioner, ) ) v. ON PETITION FOR REVIEW ) FROM THE UNITED STATES ) MERRICK B. GARLAND, Attorney General, BOARD OF IMMIGRATION ) APPEALS Respondent. ) ) BEFORE: GIBBONS, COOK, and LARSEN, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. The Board of Immigration Appeals (BIA) denied Tong Chen’s motion to reopen his immigration proceedings because it concluded that Chen’s motion was barred by 8 U.S.C. §§ 1229a(c)(7)(A) and 1229a(c)(7)(C)(i), which limit when and how many times a petitioner may file a motion to reopen his proceedings. In his petition for review of the BIA’s decision, Chen argues that his motion to reopen falls within the “changed country conditions” exception to § 1229a’s so-called time and number requirements. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Because we find that the BIA did not abuse its discretion in denying Chen’s motion, we deny Chen’s petition for review. Chen, a native and citizen of the People’s Republic of China, entered the United States in 2000 seeking asylum. After Chen failed to appear at his first removal hearing, an immigration judge issued an order for Chen’s removal. Upon learning of this in absentia removal order, Chen re-applied for asylum and, in the alternative, withholding of removal under 8 U.S.C. § 1231(b)(3) No. 20-3980, Chen v. Garland and the Convention Against Torture. The immigration judge granted Chen a new hearing to pursue these claims. At his hearing, which was held in 2010, Chen alleged that he could not safely return to China because he was a practicing Christian facing religious persecution in his home country. After considering the evidence, the immigration judge denied Chen’s application for asylum because it was untimely. She also denied Chen’s motion for withholding of removal because she concluded that Chen’s claim of persecution was not credible. Chen appealed, and the BIA dismissed his appeal because it concluded that the immigration judge’s credibility finding was not clearly erroneous and Chen had failed to carry his burden on his claims for asylum and withholding of removal. In 2016, Chen filed a motion to reopen the proceedings, and the BIA denied his petition. Chen’s second motion to reopen the proceedings in 2018 ended with the same result. This case arises out of the denial of Chen’s third motion to reopen the BIA proceedings, filed in 2019. Typically, a motion to reopen must be filed within ninety days of the final administrative order of removal, and a petitioner may file only one such motion. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see also 8 C.F.R. § 1003.2(c)(2). Under these general rules, Chen’s motion would clearly be barred; it was filed almost eight years after the BIA’s original decision and it is his third motion. But, as with almost every rule, there are exceptions. Chen argues that one of these exceptions—which allows for late and duplicitous motions when there …
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