Zhang Fei Xie v. Holder ( 2009 )

07-3765-ag
Zheng v. Holder
BIA
Brennan, IJ
A073-177-441
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 7 th day of December, two thousand nine.
5
6 PRESENT:
7 ROGER J. MINER,
8 JOSÉ A. CABRANES,
9 GERARD E. LYNCH,
10 Circuit Judges
11
12 ______________________________________
13
14 XIANG JIN ZHENG,
15 Petitioner,
16
17 v. 07-3765-ag
18 NAC
19 ERIC H. HOLDER JR., U.S. ATTORNEY
20 GENERAL, * BOARD OF IMMIGRATION APPEALS,
21 Respondents.
22 ______________________________________
23
24
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Alberto R. Gonzales as a respondent in this case.
1 FOR PETITIONER: Henry Zhang, Zhang and Associates,
2 P.C., New York, New York.
3
4 FOR RESPONDENTS: Jeffrey S. Bucholtz, Acting
5 Assistant Attorney General, Civil
6 Division, M. Jocelyn Lopez Wright,
7 Assistant Director, Brianne Whelan
8 Cohen, Trial Attorney, Office of
9 Immigration Litigation, Civil
10 Division, United States Department
11 of Justice, Washington, D.C.
12
13 UPON DUE CONSIDERATION of this petition for review of a
14 Board of Immigration Appeals (“BIA”) decision, it is hereby
15 ORDERED, ADJUDGED, AND DECREED that the petition for review
16 is DISMISSED, in part, and DENIED, in part.
17 Xiang Jin Zheng, a native and citizen of the People’s
18 Republic of China, has filed a petition for review of an
19 August 6, 2007 order of the BIA declining to reopen her
20 deportation proceedings. In re Xiang Jin Zheng, No. A 073
21 177 441 (B.I.A. Aug. 6, 2007). We assume the parties’
22 familiarity with the underlying facts and procedural history
23 in this case.
24 I. The BIA’s April 2005 Decision
25 Though she filed a petition for review that was timely
26 as to the BIA’s August 2007 order, Zheng also challenges an
27 April 2005 BIA order, in which it reversed the decision of
28 an immigration judge granting asylum. The government argues
2
1 that this Court lacks jurisdiction to review the BIA’s April
2 2005 decision. We agree. This Court has jurisdiction to
3 consider “final” orders of removal in immigration cases, see
4 8 U.S.C. § 1252(a)(1), and we have held that “a BIA order
5 denying relief from removal and remanding for the sole
6 purpose of considering voluntary departure is a final order
7 of removal that this Court has jurisdiction to review.” See
8 Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir. 2008); see
9 also Arias Chupina v. Holder, 570 F.3d 99, 103-05 (2d Cir.
10 2009)(per curiam). Although Zheng filed a timely petition
11 for review of the BIA’s April 2005 decision, she withdrew it
12 with prejudice. Because the current petition for review is
13 timely only with respect to the BIA’s August 2007 order, we
14 lack jurisdiction to address the BIA’s April 2005 decision.
15 See Stone v. INS, 514 U.S. 386, 405 (1995) (holding that the
16 Court treats each petition for review as challenging only
17 the BIA decision from which it was timely filed); Samuels v.
18 Northern Telecom, Inc., 942 F.2d 834, 837 (2d Cir. 1991)
19 (“Res judicata may not be avoided on the basis of . . . an
20 attorney’s ill-considered decision to enter into an
21 all-encompassing stipulation of withdrawal with
22 prejudice.”). Accordingly, Zheng’s petition for review is
23 dismissed to the extent she challenges the BIA’s April 2005
24 order.
3
1 II. The BIA’s August 2007 Order
2 We review the BIA’s denial of a motion to reopen for
3 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
4 Cir. 2006)(per curiam). Where the BIA considers relevant
5 evidence of country conditions in evaluating a motion to
6 reopen, we review the BIA’s factual findings under the
7 substantial evidence standard. See Jian Hui Shao v.
8 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
9 The BIA did not abuse its discretion in denying Zheng’s
10 motion to reopen because she failed to demonstrate her prima
11 facie eligibility for relief. See INS v. Abudu, 485 U.S.
12 94, 104-05 (1988). We have previously reviewed the BIA’s
13 consideration of evidence similar to that which Zheng
14 submitted and have found no error in its conclusion that
15 such evidence is insufficient to establish either material
16 changed country conditions or an objectively reasonable fear
17 of persecution. See Jian Hui Shao, 546 F.3d at 169-72
18 (noting that “[w]e do not ourselves attempt to resolve
19 conflicts in record evidence, a task largely within the
20 discretion of the agency”); see also Wei Guang Wang v. BIA,
21 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA
22 must consider evidence such as “the oft-cited Aird
23 affidavit, which [it] is asked to consider time and again[,]
4
1 . . . it may do so in summary fashion without a reviewing
2 court presuming that it has abused its discretion”).
3 Nothing in the record compels us to conclude, as Zheng
4 argues, that the BIA ignored the evidence she submitted or
5 the arguments she made, evidence and arguments the BIA is
6 asked to consider time and again. See Xiao Ji Chen v. U.S.
7 Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).
8 Finally, we decline Zheng’s request to remand for the agency
9 to consider evidence that was not in the administrative
10 record. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d
11 Cir. 2007); see also 8 U.S.C. § 1252(b)(4)(A).
12 For the foregoing reasons, the petition for review is
13 DISMISSED, in part, and DENIED, in part. As we have
14 completed our review, any pending motion for a stay of
15 removal in this petition is DISMISSED as moot. Any pending
16 request for oral argument in this petition is DENIED in
17 accordance with Federal Rule of Appellate Procedure
18 34(a)(2), and Second Circuit Local Rule 34(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23 By:___________________________
5