Filed: Feb. 02, 2011
Latest Update: Feb. 21, 2020
Summary: 10-1296-ag Hu v. Holder BIA A073 610 174 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 “SUMM
Summary: 10-1296-ag Hu v. Holder BIA A073 610 174 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 “SUMMA..
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10-1296-ag
Hu v. Holder
BIA
A073 610 174
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 2 nd day of February, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 Mingguang Hu, also known as Ming Guang
14 Hu,
15 Petitioner,
16
17 v. 10-1296-ag
18 NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL, OIL,
22 Respondents.
23 _______________________________________
24
25 FOR PETITIONER: Wendy Tso, New York, New York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General; Jennifer Paisner-Williams,
29 Senior Litigation Counsel; Yedidya
30 Cohen, Trial Attorney, 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 Mingguang Hu, a native and citizen of the People’s
6 Republic of China, seeks review of a March 18, 2010, order
7 of the BIA denying his motion to reopen his removal
8 proceedings. In re Hu, No. A073 610 174 (B.I.A. Mar. 18,
9 2010). 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 did not abuse its discretion by denying Hu’s
17 motion to reopen as untimely and number-barred because his
18 motion was filed in November 2009, almost thirteen years
19 after the entry of his December 1996 final order of removal
20 and it was his second motion to reopen. See id.; see also
21 8 C.F.R. § 1003.2(c)(2).
22 The BIA reasonably concluded that Hu failed to
23 establish changed country conditions such that the time and
2
1 number limits on his motion to reopen should be excused.
2 See 8 U.S.C. § 1229a(c)(7)(C)(ii). As an initial matter, we
3 decline to review Hu’s unexhausted claim that he established
4 changed country conditions with regard to China’s family
5 planning policy. See Foster v. INS, 376 F.3d 75, 78 (2d
6 Cir. 2004) (holding that petitioners must raise to the BIA
7 the specific issues they later raise in this Court); Lin
8 Zhong v. U.S. Dep’t of Justice,
480 F.3d 104, 119-20 (2d
9 Cir. 2007) (holding that, although not jurisdictional, the
10 judicially imposed exhaustion requirement is mandatory).
11 As to Hu’s claim of worsening conditions for
12 Christians, the evidence Hu submitted in support of his
13 motion indicated ongoing persecution against Christians in
14 China. However, Hu fails to point to evidence in the record
15 establishing that the Chinese government’s current treatment
16 of Christians differed from their treatment at the time of
17 his merits hearing. See Matter of S-Y-G-, 24 I. & N. Dec
18 247, 253 (BIA 2007) (finding that, “[i]n determining whether
19 evidence accompanying a motion to reopen demonstrates a
20 material change in country conditions that would justify
21 reopening, we compare the evidence of country conditions
22 submitted with the motion to those that existed at the time
23 of the merits hearing below”). Therefore, substantial
3
1 evidence supports the BIA’s determination that Hu failed to
2 establish changed country conditions. See 8 C.F.R.
3 § 1003.2(c)(2), (c)(3)(ii); see also Jian Hui Shao v.
4 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (holding that when
5 the BIA considers relevant evidence of country conditions in
6 evaluating a motion to reopen, this Court reviews the BIA’s
7 factual findings under the substantial evidence standard).
8 Furthermore, there is no merit to Hu’s argument that he
9 was not required to show changed country conditions in order
10 to excuse the time and number limitations on his motion to
11 reopen. Yuen Jin v. Mukasey,
538 F.3d 143, 156 (2d Cir.
12 2008) (holding that the BIA reasonably interpreted the
13 Immigration and Nationality Act and its implementing
14 regulations to require that “an alien under a final removal
15 order must file a successive asylum application in
16 conjunction with a motion to reopen and in accordance with
17 th[e] procedural requirements [for filing such motions]”).
18 Lastly, because Hu does not challenge the BIA’s finding
19 that he failed to demonstrate due diligence in pursuing his
20 ineffective assistance of counsel claim, we find that issue
21 waived. See Yueqing Zhang v. Gonzales,
426 F.3d 540, 545
22 n.7 (2d Cir. 2005) (holding that issues not sufficiently
23 argued in the briefs are considered waived and normally will
4
1 not be addressed on appeal). As Hu failed to challenge this
2 finding, which is dispositive of his ineffective assistance
3 of counsel claim, his claim of ineffective assistance
4 provides no basis for a grant of the petition for review.
5 See Ali, 448 F.3d at 517 (holding that an individual seeking
6 to reopen his case is required to show that he “exercised
7 due diligence in pursuing the case during the period [he]
8 seeks to toll”); see also Steevenez v. Gonzales,
476 F.3d
9 114, 118 (2nd Cir. 2007) (denying a petition for review
10 because petitioner failed to challenge a dispositive ground
11 for relief).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
5
