Filed: Jan. 21, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2476-ag Tang v. Holder BIA A070 530 729 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: 09-2476-ag Tang v. Holder BIA A070 530 729 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 “..
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09-2476-ag
Tang v. Holder
BIA
A070 530 729
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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of January, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 XUE MING TANG,
14 Petitioner,
15
16 v. 09-2476-ag
17 NAC
18
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Oleh R. Tustaniwsky, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General, Richard M. Evans, Assistant
29 Director, Nancy E. Friedman, Senior
30 Litigation Counsel, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Xue Ming Tang, a native and citizen of the
6 People’s Republic of China, seeks review of a May 13, 2009
7 order of the BIA denying his motion to reopen his removal
8 proceedings. In re Xue-Ming Tang, No. A070 530 729 (B.I.A.
9 May 13, 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien who has been ordered removed may
14 file one motion to reopen, but must do so within 90 days of
15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
16 Here, the BIA properly denied Tang’s motion to reopen as
17 untimely where he filed it six months after his June 2008
18 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2).
19 The 90-day filing deadline may be equitably tolled
20 where the alien can establish “changed country conditions
21 arising in the country of nationality . . . .” 8 U.S.C.
22 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Tang
23 argues that the BIA abused its discretion by failing to
2
1 properly consider the evidence of changed country conditions
2 in the record. However, the BIA is not required to
3 “expressly parse or refute on the record each individual
4 argument or piece of evidence offered by the petitioner” as
5 long as it “has given reasoned consideration to the
6 petition, and made adequate findings.” Wei Guang Wang v.
7 BIA, 437 F.3d 270, 275 (2d Cir. 2006). Indeed, a review of
8 the record reveals that the BIA reasonably considered the
9 record evidence and properly found that reopening was not
10 warranted because Tang’s motion was based not on changed
11 country conditions in China, but on changed personal
12 circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii).
13 Accordingly, as Tang is under a final order of removal
14 and did not file a timely motion to reopen, the BIA did not
15 abuse its discretion in concluding that he was not eligible
16 to file a successive asylum application based solely on his
17 changed personal circumstances. See Yuen Jin v. Mukasey,
18
538 F.3d 143, 151-56 (2d Cir. 2008); see also Wei Guang
19
Wang, 437 F.3d at 274 (noting that “apparent gaming of the
20 system in an effort to avoid [removal] is not tolerated by
21 the existing regulatory scheme”). The Court need not reach
22 Tang’s argument that he is prima facie eligible for relief
3
1 because he was required to show changed country conditions
2 in order to succeed on his untimely motion. See 8 U.S.C.
3 § 1229a(c)(7)(C)(ii).
4 Finally, because Tang’s claims for asylum, withholding
5 of removal, and CAT relief, were based on the same factual
6 predicate, the BIA did not err when it declined to consider
7 his CAT claim in the denial of his motion. See Paul v.
8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34(b).
17
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23
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