Wei Dong Zeng v. Holder ( 2010 )

08-0406-ag
Zeng v. Holder
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.
_____________________________
WEI DONG ZENG v. HOLDER, 1 08-0406-ag
A073 534 508
_____________________________
SHI JIN LIN v. HOLDER, 08-1249-ag
A077 297 492
_____________________________
YUE HUA LIN v. HOLDER, 08-1599-ag
A078 199 003
_____________________________
YUNQIANG WU v. HOLDER 08-2819-ag
A072 461 181
_____________________________
_____________________________
SHIXIONG LIU v. HOLDER, 08-3987-ag
A073 620 810
_____________________________
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr. is automatically substituted as respondent
in these cases.
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UPON DUE CONSIDERATION of these petitions for review of
Board of Immigration Appeals (“BIA”) decisions, it is hereby
ORDERED, ADJUDGED, AND DECREED, that these petitions for
review are DENIED.
Each of these petitions challenges a decision of the BIA
denying a motion to reopen, or affirming an Immigration
Judge’s (“IJ”) denial of a motion to reopen, based on either
the movant’s failure to demonstrate changed country conditions
sufficient to avoid the time and numerical limits applicable
to such motions or the movant’s failure to demonstrate prima
facie eligibility for the underlying relief sought. See 8
C.F.R. § 1003.2(c). The applicable standard of review is
well-established. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006).
The motions to reopen at issue in these petitions were
each based primarily on the birth of one or more children to
the Chinese citizen petitioners. 2 For largely the same
reasons this Court set forth in Jian Hui Shao v. Mukasey, 546
2
Insofar as the petitioner in Wei Dong Zeng v. Holder, 08-0406-ag,
argues that the new evidence he submitted in support of his motion
demonstrated his eligibility for relief based on his claim that family
planning officials attempted to forcibly sterilize him in 1990, we find
that the BIA did not abuse its discretion in finding that he could have
presented that claim in his original asylum application and at his
October 1996 hearing before the IJ. See 8 C.F.R. § 1003.2(c)(1); see
also INS v. Abudu, 485 U.S. 94, 104-05 (1988).
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F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s
decisions. 3 See id. at 168-72. We lack jurisdiction to
review the BIA’s decisions insofar as it declined to reopen
proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515,
518 (2d Cir. 2006).
For the foregoing reasons, these petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
argument in these petitions 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
3
In Shi Jin Lin v. Holder, 08-1249-ag, the BIA also did not err in
declining to reopen the petitioner’s proceedings to permit her to
relitigate the merits of her initial application for relief. See 8
C.F.R. § 1003.2(c)(1). Furthermore, we lack jurisdiction to consider the
petitioner’s unexhausted argument that the ineffective assistance of her
former counsel should have equitably tolled the time period for the
filing of her motion to reopen. See Karaj v. Gonzales, 462 F.3d 113, 119
(2d Cir. 2006).
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