Filed: Sep. 19, 2014
Latest Update: Mar. 02, 2020
Summary: 12-5067 Yang v. Holder BIA A099 532 376 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
Summary: 12-5067 Yang v. Holder BIA A099 532 376 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 “SUMMAR..
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12-5067
Yang v. Holder
BIA
A099 532 376
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 19th day of September, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN XIN YANG,
14 Petitioner,
15
16 v. 12-5067
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Eric Y. Zheng, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Derek C. Julius,
27 Senior Litigation Counsel; Theo
28 Nickerson, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Jian Xin Yang, a native and citizen of the
6 People’s Republic of China, seeks review of the November 30,
7 2012, order of the BIA denying his motion to reopen. In re
8 Jian Xin Yang, No. A099 532 376 (B.I.A. Nov. 30, 2012). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, remaining mindful of the Supreme
13 Court’s admonition that motions to reopen are “disfavored.”
14 See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
15 (quoting INS v. Doherty,
502 U.S. 314, 322-23 (1992)).
16 There are at least three independent grounds upon which the
17 BIA may deny a motion to reopen: (1) failure to establish a
18 prima facie case for the relief sought; (2) failure to
19 provide previously unavailable, material evidence; and
20 (3) a determination that, even if the first two requirements
21 were met, the alien would not be entitled to the relief as a
22 matter of discretion. See
Doherty, 502 U.S. at 323.
2
1 Furthermore, “[i]f the Attorney General determines that an
2 alien has knowingly made a frivolous application for asylum
3 and the alien has received [] notice . . . the alien shall
4 be permanently ineligible for any benefits under [the
5 Immigration and Nationality Act], effective as of the date
6 of a final determination on such application.” 8 U.S.C.
7 § 1158(d)(6); see Biao Yang v. Gonzales, 496 F.3d 268, 275
8 (2d Cir. 2007) (“an [IJ’s] specific finding that [an
9 applicant] deliberately fabricated a material element of his
10 asylum claim constitutes a finding that he knowingly filed a
11 frivolous asylum application”).
12 In this case, Yang received both written and oral
13 notice of the consequences of filing a frivolous application
14 for asylum, and was provided an opportunity to discuss the
15 issue with his attorney. In her decision, the IJ stated
16 that her frivolous finding was based on Yang’s “deliberate"
17 act of including material false statements in his asylum
18 application. See Biao
Yang, 496 F.3d at 276-77. The BIA
19 affirmed the IJ’s frivolous finding in 2009 and Yang did not
20 petition this Court for review of that decision; thus the
21 frivolous filing finding became final. Accordingly, Yang is
22 permanently ineligible for asylum, and therefore unable to
3
1 demonstrate his prima facie eligibility for such relief, as
2 is necessary to reopen proceedings. See 8 U.S.C.
3 § 1158(d)(6); Biao Yang, 496 F.3d at 274.
4 Importantly, while the frivolous finding does not bar
5 Yang from establishing his eligibility for withholding of
6 removal or CAT relief, see Biao
Yang, 496 F.3d at 274 n.2,
7 asylum is the only relief Yang sought in his motion to
8 reopen. Yang does not argue, either in his motion to reopen
9 or to this Court, that he meets the “more likely than not”
10 standard for either withholding of removal or CAT relief,
11 and asserts only that he has made out a prima facie case
12 because there is a “realistic chance he could demonstrate at
13 least a ten percent chance of persecution.” In addition,
14 Yang’s contention that the BIA cited the frivolous finding
15 only to deny reopening under its sua sponte authority is
16 without merit, as the language of the statute clearly states
17 that an alien “shall be permanently ineligible for any
18 [asylum] benefits.” 8 U.S.C. § 1158(d)(6). Thus, because
19 the agency may deny reopening if the applicant fails to
20 demonstrate prima facie eligibility for the relief sought,
21 and in this case Yang is ineligible for such relief, the BIA
22 did not abuse its discretion in denying his motion to
23 reopen.
4
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DENIED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
5
