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 2010-08

Li Qin Huang v. Holder ( 2010 )


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  • 07-5681-ag
Huang v. Holder
BIA
A078 733 300
A077 322 832
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31 st day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________________
LI QIN HUANG, YI XIN CHEN,
Petitioners,
v.                                              07-5681-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, * UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents.
_________________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr., is automatically substituted for former
Attorney General Michael B. Mukasey as a respondent in this case.
051710-18
FOR PETITIONERS:                  Yee Ling Poon, New York, New York.
FOR RESPONDENTS:                  Gregory G. Katsas, Assistant Attorney
General; Mark C. Walters, Assistant
Director; W. Manning Evans, Trial
Attorney,   Office   of   Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioners Li Qin Huang and Yi Xin Chen, natives and
citizens of the People’s Republic of China, seek review of a
November 28, 2007 order of the BIA denying their motion to
reopen.           In re Li Qin Huang, Yi Xin Chen, Nos. A078 733 300,
A077 322 832 (B.I.A. Nov. 28, 2007).                  We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen or
reconsider for abuse of discretion.                 See Kaur v. BIA,
    413 F.3d 232
    ,        233    (2d   Cir.   2005)   (per    curiam);   Jin   Ming   Liu   v.
Gonzales,
    439 F.3d 109
    , 111 (2d Cir. 2006).                   When the agency
considers           relevant    evidence       of   country   conditions      in
evaluating a motion to reopen, we review the agency’s factual
051710-18                                -2-
findings under the substantial evidence standard.                    See Jian
Hui Shao v. Mukasey,
    546 F.3d 138
    , 169 (2d Cir. 2008).
The BIA did not err in denying petitioners’ motion to
reopen.          We    have    previously      reviewed      the     agency’s
consideration of similar evidence and have found no error in
its conclusion that such evidence is insufficient to establish
a reasonable possibility of forced sterilization.                  See
    id. at 169-72
    ; see also Wei Guang Wang v. BIA,
    437 F.3d 270
    , 275 (2d
Cir. 2006).
In addition, contrary to petitioners’ argument, the BIA
did not err on remand in construing their motion as a motion
to reopen as opposed to a motion to reconsider because the
Court directed the BIA to consider new evidence on remand and
not to reconsider its earlier decision based on the existing
record.     See Ke Zhen Zhao v. U.S. Dep’t of Justice,
    265 F.3d 83
    ,     90-91   (2d   Cir.    2001).     Furthermore,     in   its    initial
consideration         of   petitioners’      motion,   the     BIA    clearly
construed their motion as seeking reconsideration in part and
reasonably found that petitioners’ conclusory assertion of
error failed to specify any errors of fact or law in its prior
decision.       See
    8 C.F.R. § 1003.2
    (b)(1); Ke Zhen Zhao,
    265 F.3d at 90
    .
For the foregoing reasons, the petition for review is
051710-18                              -3-
DENIED.     As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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