Judges: Per Curiam
Filed: May 07, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 6, 2009* Decided May 7, 2009 Before FRANK H. EASTERBROOK, Chief Judge JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-2593 JIN MIN DONG, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. A70 900 119 ERIC H. HOLDER, JR., Attorney General of the United States Respondent
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 6, 2009* Decided May 7, 2009 Before FRANK H. EASTERBROOK, Chief Judge JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge No. 08-2593 JIN MIN DONG, Petition for Review of an Order of the Petitioner, Board of Immigration Appeals. v. A70 900 119 ERIC H. HOLDER, JR., Attorney General of the United States Respondent...
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 6, 2009*
Decided May 7, 2009
Before
FRANK H. EASTERBROOK, Chief Judge
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 08‐2593
JIN MIN DONG, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. A70 900 119
ERIC H. HOLDER, JR.,
Attorney General of the United States
Respondent.
O R D E R
Jin Min Dong, a Chinese citizen, petitions for review of an order of the Board of
Immigration Appeals denying his motion to reopen his deportation proceedings. We
dismiss the petition for lack of jurisdiction.
Dong entered the United States without inspection in 1990, and three years later he
filed an application for asylum and withholding of deportation, claiming that he had been
persecuted in China because of his affiliation with an underground Catholic church. An
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the petition for review is submitted on the briefs and the record. See FED.
R. APP. P. 34(a)(2).
No. 08‐2593 Page 2
asylum officer interviewed Dong in 1997 but referred his application to the immigration
court, and the Immigration and Naturalization Service initiated deportation proceedings.
After a series of continuances, Dong’s application was finally adjudicated in 2001, when the
immigration judge denied asylum and withholding of deportation but granted voluntary
departure. The Board of Immigration Appeals affirmed that decision in 2003. Dong
ignored the terms of voluntary departure and remained in the United States.
In 2007 Dong filed a motion requesting that the Board reopen his deportation
proceedings in light of changed country conditions, see 8 U.S.C. § 1229a(c)(7)(C)(ii),
specifically, the stepped‐up efforts of Chinese officials to find him. In support of the
motion, Dong submitted a letter from his mother reporting that police had visited her
earlier that year looking for him, and had ransacked her home and frightened her to the
point that she fainted. But because the letter also stated that the police had never stopped
searching for Dong or harassing the family since his departure seventeen years earlier, and
Dong had not explained why he could not have presented evidence of this harassment at
his asylum hearing, the Board concluded that Dong had not demonstrated evidence of
changed country conditions and denied the motion. The Board also declined to sua sponte
reopen Dong’s proceedings so that he could pursue adjustment of status based on his
marriage in 2003 to a United States citizen. Dong’s case was not so exceptional as to
warrant sua sponte reopening, the Board reasoned, because he had married knowing that he
was subject to a deportation order and, in any event, had not submitted evidence of an
approved visa petition.
Dong petitions this court for review, but we lack jurisdiction to review the Board’s
discretionary denial of a motion to reopen unless it presents a question of law, see Kucana v.
Mukasey, 533 F.3d 534, 536‐38 (7th Cir. 2008), and Dong has identified no such question. The
Board’s conclusion that Dong failed to present sufficient evidence of changed country
conditions is a factual determination. See Sharashidze v. Mukasey, 542 F.3d 1177, 1179 (7th
Cir. 2008). But even if we had jurisdiction, Dong’s claim would fail because the Board’s
decision to deny his motion was not an abuse of discretion. See Gebreeyesus v. Gonzales, 482
F.3d 952, 954 (7th Cir. 2007). Dong’s evidence that Chinese officials have searched for him
since his departure and visited his mother as recently as 2007 does not establish changed
country conditions. Rather, it is cumulative evidence that the conditions he alleged in his
original asylum application have persisted. See Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir.
2005). Without evidence of a material change, Dong was not entitled to have his case
reopened. See id.; Simtion v. Ashcroft, 393 F.3d 733, 737 (7th Cir. 2004).
Finally, although Dong contests the Board’s assertion that he should have submitted
evidence of an approved visa petition, he concedes that the Board’s refusal to sua sponte
reopen proceedings is beyond our review. See Johnson v. Gonzales, 478 F.3d 795, 799 (7th Cir.
2007).
DISMISSED.