Cui Ying Zhan v. Attorney General , 283 F. App'x 16 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-23-2008
Zhan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3125
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RESUBMIT CLD-401 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3125
___________
CUI YING ZHAN,
Petitioner
VS.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A78-858-596)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted for Possible Summary Action
under Third Circuit LAR 27.4 and I.O.P. 10.6
June 3, 2008
Before: RENDELL, SMITH and JORDAN Circuit Judges
(Filed: June 23, 2008)
_________
OPINION
_________
PER CURIAM
Petitioner, Cui Ying Zhan, has filed a motion for a stay of removal and a petition
for review from the order of the Board of Immigration Appeals (“BIA”) denying her
motion to reopen. The government has filed a motion for summary action, to which
Petitioner has filed a response in opposition. For the reasons that follow, we will
summarily deny the petition for review. See Third Circuit LAR 27.4 and I.O.P. 10.6.
Petitioner, a native and citizen of the People’s Republic of China, entered the
United States on February 5, 2002, in Chicago, Illinois. Petitioner did not possess a valid
entry document and was served on February 8, 2002, with a charging document, alleging
she was not in possession of a valid entry document, she committed fraud, and that she
falsely identified herself as a United States citizen. Petitioner was found removable by
the Immigration Judge (“IJ”). Petitioner applied for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). The IJ denied relief on December
2, 2002, and Petitioner, through counsel, sought review by the Board of Immigration
Appeals (“BIA”). On April 9, 2004, the BIA affirmed the IJ’s decision. Almost three
years later, Petitioner filed a motion to reopen, which the BIA denied on June 25, 2007.
Petitioner, through counsel, has filed a petition for review and a motion for a stay of
removal. The government opposes the motion and has filed a motion for summary action.
Petitioner has filed a response in opposition.
We have jurisdiction to review the BIA’s denial of a motion to reopen. See Nocon
v. INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986). We review the denial of a motion to
reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006).
Under the abuse of discretion standard, the BIA’s decision may be reversed only if it is
“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
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2002). We will summarily deny a petition for review if the petition presents no
substantial question. See I.O.P. 10.6.
Although Petitioner’s petition for review seeks review of the BIA’s April 9, 2004
decision and the BIA’s June 25, 2007 decision, only the BIA’s June 25, 2007 decision,
denying Petitioner’s motion to reopen, is properly before this Court. See Nocon, 789 F.2d
at 1032-33 (explaining that final deportation orders and orders denying motions to
reconsider are independently reviewable and a timely petition for review must be filed
with respect to the specific order sought to be reviewed). Accordingly, our review does
not extend to the BIA’s April 9, 2004 order. See Stone v. INS, 514 U.S. 386, 405 (1995)
(holding that a motion for reconsideration does not toll the time to file a petition for
review of a final deportation order).
Petitioner’s motion before the BIA sought to reopen her proceedings because of
the birth of her two children. The BIA concluded that Petitioner’s motion to reopen was
untimely. Although the BIA recognized that there was an exception to the timeliness
requirements based on changed circumstances in the country of nationality, the BIA
concluded that Petitioner had failed to demonstrate such a change. See 8 C.F.R.
§ 1003.2(c)(ii). The BIA explained that, contrary to Petitioner’s assertion, the birth of a
child does not constitute a change in personal circumstances that falls within
§ 1003.2(c)(ii)’s exception. See Guan v. Board of Immigration Appeals, 345 F.3d 47, 49
(2d Cir. 2003). The BIA further concluded that Petitioner failed to demonstrate that
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country conditions had changed in a manner that materially impacts her eligibility for
asylum.
We conclude that the BIA’s decision denying Petitioner’s motion to reopen is not
arbitrary, irrational, or contrary to law. After careful review of Petitioner’s motion to
reopen, response in opposition and exhibits in support thereof, we conclude that
Petitioner has failed to demonstrate changed country conditions. 8 C.F.R.
§ 1003.2(c)(3)(ii). Here, Petitioner’s motion to reopen provides information regarding the
current country conditions for the People’s Republic of China, but fails to present
evidence of how those conditions have materially changed since her hearing before the IJ
in 2002. Petitioner’s response in opposition to the motion for summary action simply
states “[P]etitioner has offered other evidence relating to the present enforcement of the
family planning in other part[s] of China,” but fails to identify any evidence
demonstrating a change in family planning policies. (Pet’r Resp. in Opp’n 5.)
Furthermore, Petitioner’s assertion that the BIA’s focus on the Fujian Province imposed
an “unreasonable stringent burden of proof” is meritless. (Id.) The BIA’s focus on the
Fujian Province did not prejudice Petitioner or impose a stricter standard of proof.
Because Petitioner has failed to demonstrate changed country conditions, the BIA did not
err by denying her motion to reopen.
For the foregoing reasons, we will grant the government’s motion for summary
action and summarily deny Petitioner’s petition for review. Petitioner’s motion for stay
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of removal is denied as moot.
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