Xiu Juan Liu v. Lynch ( 2016 )

15-1613
Liu v. Lynch
BIA
A077 927 830
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of November, two thousand sixteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIU JUAN LIU, AKA XIUJUAN LIU,
14 Petitioner,
15
16 v. 15-1613
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Lee B. Ratner, Law Offices of Michael
24 Brown, New York, N.Y.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General, Keith I.
28 McManus, Senior Litigation Counsel,
29 Matt A. Crapo, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 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 is
4 DENIED.
5 Petitioner Xiu Juan Liu, a native and citizen of the
6 People’s Republic of China, seeks review of an April 30, 2015
7 decision of the BIA denying reconsideration of its March 3, 2015
8 denial of Liu’s second untimely motion to reopen. In re Xiu
9 Juan Liu, No. A077 927 830 (B.I.A. Apr. 30, 2015). We assume
10 the parties’ familiarity with the underlying facts and
11 procedural history in this case.
12 Our review is limited to the BIA’s denial of
13 reconsideration, which we review for abuse of discretion. See
14 Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). A
15 movant seeking reconsideration must “specify the errors of law
16 or fact in the previous order and [support the motion] with
17 pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C); accord
18 8 C.F.R. § 1003.2(b)(1); see also Jian Hui Shao v. Mukasey, 546
19 F.3d 138, 173 (2d Cir. 2008). The question is whether Liu’s
20 motion for reconsideration identified error in the BIA’s denial
21 of her second untimely motion to reopen. The BIA may deny an
22 untimely motion to reopen for failure to establish either
23 materially changed country conditions to excuse the untimely
2
1 filing or prima facie eligibility for the underlying
2 substantive relief sought. See 8 U.S.C. § 1229a(c)(7)(C)(ii);
3 8 C.F.R. § 1003.2(c)(3)(ii); INS v. Abudu, 485 U.S. 94, 104-05
4 (1988).
5 The BIA did not abuse its discretion. Liu’s
6 reconsideration motion argued that the BIA committed legal
7 error in concluding that she had not established changed country
8 conditions; however, she made no claim of error with respect
9 to the BIA’s alternative basis for denying reopening—that she
10 failed to establish her prima facie eligibility for asylum.
11 The BIA, in denying reconsideration, referenced explicitly
12 Liu’s failure to establish her prima facie eligibility for
13 relief. Because Liu did not challenge the BIA’s prima facie
14 eligibility determination, and because that determination was
15 independently dispositive of Liu’s second untimely motion to
16 reopen, we conclude that the BIA did not abuse its discretion
17 in denying reconsideration. See Qin Wen Zheng v. Gonzales, 500
18 F.3d 143, 146 (2d Cir. 2007) (“The BIA abuses its discretion
19 if its decision provides no rational explanation, inexplicably
20 departs from established policies, is devoid of any reasoning,
21 or contains only summary or conclusory statements.” (internal
22 quotation marks and citation omitted)). We decline to reach
23 the BIA’s alternative changed country conditions analysis.
3
1 INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
2 courts and agencies are not required to make findings on issues
3 the decision of which is unnecessary to the results they
4 reach.”).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DENIED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
4