Filed: Oct. 08, 2010
Latest Update: Feb. 22, 2020
Summary: 07-3507-ag Qu v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PA
Summary: 07-3507-ag Qu v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PAR..
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07-3507-ag
Qu v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8 th day of October, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________
SHUANG SHI QU v. HOLDER, 1 07-3507-ag
A028 776 789
_________________________________
ZHEN LANG WENG v. HOLDER, 07-3941-ag
A072 766 089
_________________________________
QI DUAN SUN v. HOLDER, 07-4169-ag
A070 897 908
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
1
Attorney General Eric. H. Holder, Jr., is automatically
substituted when necessary.
08232010-1-23
YAN PING CHEN, YOU CHEN YANG v. 07-4604-ag (L)
HOLDER, 07-4605-ag (Con)
A077 280 957
A073 169 009
_________________________________
SHUIFANG ZHENG v. HOLDER, 07-4699-ag
A077 550 257
_________________________________
HUI LI, MEI XIAN LI v. HOLDER, 07-4747-ag (L)
A072 836 724 07-4748-ag (Con)
A077 341 415
_________________________________
SU ZHEN WENG v. HOLDER, 07-4914-ag
A078 972 970
_________________________________
CHUAN JIAN ZHANG v. HOLDER, 07-4957-ag
A073 185 946
_________________________________
QIAO YING CHEN, 07-5674-ag (L)
CHI-HSUN CHEN v. HOLDER, 07-5676-ag (Con)
A077 323 004
A076 810 625
_________________________________
ZHOU JIN NI v. HOLDER, 07-5755-ag
A073 051 737
_________________________________
GONG AN CHEN v. HOLDER, 08-0346-ag
A075 842 254
_________________________________
AL WHA LIN v. HOLDER, 08-0663-ag
A075 895 504
_________________________________
SHUN XING LIN v. HOLDER, 08-1233-ag
A072 460 406
_________________________________
08232010-1-23 -2-
RONG YAO YANG v. UNITED STATES 08-1345-ag
DEPARTMENT OF JUSTICE,
A078 293 002
_________________________________
TAI HUAN LI v. HOLDER, 08-2264-ag
A073 134 641
_________________________________
CUI PING LIN v. HOLDER, 08-2539-ag
A079 408 096
_________________________________
MEI YING KE, TIAN HUA LIN 08-2997-ag (L)
v. HOLDER, 08-3002-ag (Con)
A095 433 710
A073 166 452
_________________________________
SHIN LOK CHENG v. HOLDER, 08-4125-ag
A073 148 210
_________________________________
YING LIN v. HOLDER, 08-5166-ag
A073 645 603
_________________________________
YAN TANG v. HOLDER, 08-5169-ag
A075 962 124
_________________________________
LIQUN CHEN v. HOLDER, 09-0608-ag
A077 957 589
_________________________________
BING ZHENG v. HOLDER, 09-0817-ag
A072 416 443
_________________________________
_________________________________
XIU QIN CAO v. HOLDER, 09-1207-ag
A075 980 794
_________________________________
08232010-1-23 -3-
UPON DUE CONSIDERATION of these petitions for review of
several Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Each of these petitions challenges a decision of an
immigration judge (“IJ”) or the BIA denying a motion to reopen
based on either the movant’s failure to demonstrate changed
country conditions sufficient to avoid the applicable time and
numerical limits or the movant’s failure to demonstrate prima
facie eligibility for the underlying relief sought. See 8
C.F.R. §§ 1003.2(c), 1003.23(b). We review the denial of a
motion to reopen for abuse of discretion. Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006).
Petitioners, all natives and citizens of China, filed
motions to reopen based on their claim that they fear
persecution because they have one or more children in
violation of China’s population control program. For largely
the same reasons as this Court set forth in Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168-72 (2d Cir. 2008), we conclude
there was no error in the BIA’s decisions. Although the
petitioners in Jian Hui Shao were from Fujian Province, as are
most of the petitioners here, two petitioners are from
08232010-1-23 -4-
Zhejiang Province. 2 Regardless, as with the evidence
discussed in Jian Hui Shao, the evidence they have submitted
related to Zhejiang Province either does not discuss forced
sterilizations or references isolated incidents of persecution
of individuals who are not similarly situated to the
petitioners. See
id. at 160-61, 171-72.
To the extent that seven of the petitioners 3 argue that
they were eligible to file successive asylum applications
based solely on their changed personal circumstances, their
arguments are foreclosed by our decision in Yuen Jin v.
Mukasey, 538 F.3d 143 (2d Cir. 2008).
We decline any request by petitioners 4 to consider
evidence that was not included in the administrative record
and we will not remand for the agency to consider such
2
The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag;
and Su Zhen Weng v. Holder, No. 07-4914-ag.
3
The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag;
Qi Duan Sun v. Holder, No. 07-4169-ag; Hui Li, Mei Xian Li v.
Holder, Nos. 07-4747-ag (L), 07-4748-ag (Con); Qiao Ying Chen, Chi-
Hsun Chen v. Holder, Nos. 07-5674-ag (L), 07-5676-ag (Con); Tai
Huan Li v. Holder, No. 08-2264-ag; Ying Lin v. Holder, No. 08-5166-
ag; and Yan Tang v. Holder, No. 08-5169-ag. The petitioner in Zhou
Jin Ni v. Holder, No. 07-5755-ag also argues that he was eligible
to file a successive asylum application; however, we decline to
consider that argument because it was not exhausted before the BIA.
See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
Cir. 2007).
4
The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag,
and Liqun Chen v. Holder, No. 09-0608-ag.
08232010-1-23 -5-
evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni
v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). To the extent
that the BIA declined to credit petitioners’ 5 unauthenticated
evidence in light of an underlying adverse credibility
determination, the BIA did not abuse its discretion. See Qin
Wen Zheng v. Gonzales,
500 F.3d 143, 146-47 (2d Cir. 2007).
Two of the petitioners argue that the BIA applied an
incorrect burden of proof by requiring them to establish more
than their prima facie eligibility for relief. However, in
one of those cases, 6 the BIA explicitly considered the
petitioner’s prima facie eligibility for relief and, in the
other case, 7 the BIA reasonably found that the petitioner
failed to demonstrate changed country conditions excusing the
untimely filing of her motion to reopen. See 8 C.F.R. §
1003.2(c); see also INS v. Abudu, 485 U.S. 94, 104 (1988).
Some of the petitioners 8 argue that the BIA erred by
failing to reopen their proceedings to permit them to adjust
5
The petitioners in Gong An Chen v. Holder, No. 08-0346-ag;
Rong Yao Yang v. U.S. Dep’t of Justice, No. 08-1345-ag; and Xiu Qin
Cao v. Holder, No. 09-1207-ag.
6
The petitioner in Tai Huan Li v. Holder, No. 08-2264-ag.
7
The petitioner in Liqun Chen v. Holder, No. 09-0608-ag.
8
The petitioners in Qi Duan Sun v. Holder, No. 07-4169-ag; Al
Wha Lin v. Holder, No. 08-0663-ag; Cui Ping Lin v. Holder, No. 08-
2539-ag; and Yan Tang v. Holder, No. 08-5169-ag.
08232010-1-23 -6-
status; however, we lack jurisdiction to review such determi-
nations. Because petitioners’ motions were unquestionably
untimely, and eligibility to adjust status is not a statutory
basis for excusing the untimely filing of a motion to reopen,
see 8 U.S.C. § 1229a(c)(7)(C)(ii), those petitioners were
necessarily invoking the BIA’s authority to reopen proceedings
sua sponte, see 8 C.F.R. § 1003.2(a). The BIA’s determination
as to whether it will exercise that authority is entirely
discretionary and thus beyond the scope of our jurisdiction.
See Ali, 448 F.3d at 518.
For the foregoing reasons, these petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
argument in these petitions is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
08232010-1-23 -7-
