Tian Ming Chai v. United States Department of Justice , 434 F. App'x 15 ( 2011 )

10-1163-ag
Chai v. Holder
BIA
A076 506 690
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 10th day of August, two thousand eleven.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 TIAN MING CHAI,
14 Petitioner,
15
16 v. 10-1163-ag
17 NAC
18
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondents.
23 _______________________________________
24
25 FOR PETITIONER: Yee Ling Poon, Deborah Niedermeyer,
26 New York, New York.
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General; James A. Hunolt, Senior
30 Litigation Counsel; Christopher P.
31 McGreal, Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 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 DISMISSED in part and DENIED in part.
5 Tian Ming Chai, a native and citizen of the People’s
6 Republic of China, seeks review of a March 4, 2010, order of
7 the BIA denying his motion to reopen his removal
8 proceedings. In re Tian Ming Chai, No. A076 506 690 (B.I.A.
9 Mar. 4, 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). Because Chai’s motion was untimely, as it
14 was filed approximately five years after the final
15 administrative decision, 8 C.F.R. § 1003.2(c)(2), reopening
16 could be granted only upon a showing of changed country
17 conditions or through the BIA’s exercise of its authority to
18 reopen sua sponte, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
19 § 1003.2(a). Because Chai does not challenge the BIA’s
20 finding that he failed to demonstrate a change in country
2
1 conditions, the only issue before us is whether the BIA
2 erred in declining to reopen his case sua sponte.
3 We lack jurisdiction to review the BIA’s decision not
4 to reopen Chai’s case sua sponte under 8 C.F.R. § 1003.2(a),
5 because that decision was “entirely discretionary.” Ali,
6 448 F.3d at 518. Whereas in Mahmood v. Holder, 570 F.3d
7 466, 471 (2d Cir. 2009), we vacated and remanded the
8 agency’s decision because it was based on an erroneous legal
9 assumption, here, the BIA declined to exercise its
10 discretion to reopen Chai’s case because he failed to
11 demonstrate exceptional circumstances. See Guyadin v.
12 Gonzales, 449 F.3d 465, 468-69 (2d Cir. 2006) (emphasizing
13 that it is not possible to create jurisdiction over a
14 discretionary determination by simply framing a challenge to
15 such a determination as a legal question). Because the
16 BIA’s conclusion that there were no exceptional
17 circumstances was based on its factual findings regarding
18 the country conditions, there is no basis for this Court to
19 exercise jurisdiction. Cf. Mahmood, 570 F.3d at 471.
20 To the extent Chai challenges the BIA’s review of the
21 record, we have jurisdiction to consider that argument
22 because it is a question of law. See Luna v. Holder, 637
3
1 F.3d 85, 92 (2d Cir. 2011). Given the BIA’s explicit
2 references to the documentation submitted with the motion to
3 reopen, there is no basis to find that it ignored any
4 evidence. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
5 Cir. 2006) (holding that the BIA is not required to
6 “expressly parse or refute on the record each individual
7 argument or piece of evidence offered by the petitioner” as
8 long as it “has given reasoned consideration to the
9 petition, and made adequate findings”); Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
11 (presuming that the agency “has taken into account all of
12 the evidence before [it], unless the record compellingly
13 suggests otherwise”).
14 For the foregoing reasons, the petition for review is
15 DISMISSED in part and DENIED in part.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
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