Xin Shui Liu v. Ashcroft , 103 F. App'x 698 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-23-2004
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3079
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3079
XIN SHUI LIU,
Petitioner,
v.
JOHN ASHCROFT, Attorney General of the United States;
BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,
Respondents
Petition for Review of an Order
of the Board of Immigration Appeals
(Board No. A70-893-818)
Submitted under Third Circuit LAR 34.1(a)
July 2, 2004
Before: AMBRO, ALDISERT and STAPLETON, Circuit Judges.
(Filed: July 23, 2004)
_____
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Because we write only for the parties, who are familiar with the facts, the
procedural history and the contentions presented, we will not recite them except as
necessary to the discussion. Xin Shui Liu, a native and citizen of China, petitions this
court to review an order of the Board of Immigration Appeals (“Board”) denying his
motion to reconsider an earlier Board determination resulting in a final removal order.
For the reasons that follow, we will deny the petition.
Liu, who is married and has three children residing in China, entered the United
States without inspection on March 20, 1993. On May 19, 1993, Liu submitted an
application for asylum based on claims of past persecution and fear of future persecution
for violating China’s one-child family planning policy. After six hearings, the IJ denied
Liu’s application, determining that Liu had not supported his asylum claim with credible
testimony. The Board affirmed the IJ’s decision on March 3, 2003. Liu did not petition
for review of the Board’s order, but on March 24, 2003, he filed a motion to reconsider
with the Board. The Board denied the motion on June 20, 2003. Liu filed a timely
petition for review of the order denying the motion to reconsider.
Liu’s brief before this court is mostly devoted to his contention that the IJ’s
credibility determination was not supported by substantial evidence. Liu’s petition for
review must be denied for two reasons. First, to the extent Liu seeks judicial review of
the Board’s March 3, 2003 final order of removal, we do not have jurisdiction to review
that order because Liu failed to file a petition for review within 30 days as required by 8
U.S.C. § 1252(b)(1). Second, Liu has not demonstrated that the Board abused its
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discretion in denying the motion to reconsider. See INS v. Doherty, 502 U.S. 314, 323
(1992) (holding that the Board’s denial of a motion to reopen is reviewed for abuse of
discretion).
It is uncontroverted that Liu did not file a petition to review the Board’s March 3,
2003, order within 30 days of that order, as required by 8 U.S.C. § 1252(b)(1). The 30-
day filing period is “jurisdictional in nature and must be construed with strict fidelity to
[its] terms.” Stone v. INS, 514 U.S. 386, 405 (1995) (construing former 8 U.S.C. §
1105a(a)(1)). The filing of a motion to reconsider a final order of deportation does not
toll the 30-day period for seeking judicial review of the underlying order and does not
render the underlying order non-final. Id. at 394. Because Liu failed to meet the 30-day
filing period, we do not have jurisdiction to review the Board’s M arch 3, 2003 order.
See Nocon v. INS, 789 F.2d 1028, 1032-1033 (3d Cir. 1986). See also Zhao v. U.S.
Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001) (“Because we are precluded from passing
on the merits of the underlying exclusion proceedings, petitioner’s assertions that he
received no due process at his hearing and that the immigration judge’s credibility
determination was not based on substantial evidence are not before us.”).
With respect to Liu’s petition for review of the Board’s denial of his motion to
reconsider, Liu has not shown that the Board abused its discretion in the June 20, 2003
order denying the motion. See Nocon, 789 F.2d at 1033. In his motion to reconsider, Liu
was required to “state the reasons for the motion by specifying the errors of fact or law in
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the prior Board decision” and support his contentions with “pertinent authority.”
Nascimento v. INS, 274 F.3d 26, 27 (1st Cir. 2001) (citing 8 C.F.R. § 3.2(b)(1) (2001)).
Liu contends the Board abused its discretion in denying his motion to reconsider
because he had not been given a full chance to testify, the Board failed to give substantial
weight to his testimony, the Board discounted his documentary evidence for no reason,
the Board misunderstood China’s family planning policy and he had new evidence in
support of his claims. We reject each of these contentions.
Liu was afforded a full and fair opportunity to be heard at six administrative
hearings before the IJ. At the final hearing, in which his application was denied, Liu
testified before the IJ and presented documentary evidence to support his testimony.
Liu’s contention that the IJ did not take his claims seriously and ignored his testimony is
not supported by the record. Although the IJ declined to admit some of Liu’s
documentary evidence, the IJ did so for well-substantiated reasons, including that Liu
failed to authenticate or establish a chain of custody for certain documents, Liu failed to
submit several documents in a timely fashion and some of the documents lacked clarity.
Moreover, the record does not reflect any misunderstanding on the part of the IJ
regarding China’s birth control policy, rather it simply reflects the IJ’s belief that the
policy was not consistent with the claims made by Liu. Although it is consistent with
China’s family planning policy for a family to be fined after the birth of a second or third
child, it is not consistent with the policy for fines to again be levied years after the birth
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has taken place. Moreover, the Fujian Province is known for being more relaxed in its
enforcement of such policies.
Finally, Liu failed to raise any new factual arguments in his motion to reconsider.
Instead, he reiterated the same contentions he had outlined in his original appeal to the
Board. As for the legal claims he raised, those were also already raised in his original
appeal. Furthermore, Liu fails to provide any legal authority to support his claims and
instead relies on conclusory statements that the Board erred as a matter of law. Such
conclusory statements cannot satisfy his burden to establish that the Board abused its
discretion in denying his motion to reconsider. See Nocon, 789 F.2d at 1033.
We have considered all of the contentions raised by the parties and conclude that
no further discussion is necessary.
1 The petition for review will be denied.
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