Rui Xia Lin v. Mukasey ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1811
RUI XIA LIN,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 23, 2008 Decided: July 18, 2008
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gary J. Yerman, New York, New York, for Petitioner. Jeffrey S.
Bucholtz, Assistant Attorney General, M. Jocelyn Lopez Wright,
Assistant Director, Rebecca Hoffberg, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rui Xia Lin, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board of
Immigration Appeals (“Board”) denying her untimely motion to reopen
based on changed country conditions. Lin claims the Board abused
its discretion by finding she failed to establish changed country
conditions. She further claims the Board had jurisdiction to
consider her successive asylum application based on changed
personal circumstances. We deny the petition for review.
An alien may file one motion to reopen within ninety days
of the entry of a final order of removal. 8 U.S.C.A.
§ 1229a(c)(7)(A), (C) (West 2005 & Supp. 2007); 8 C.F.R.
§ 1003.2(c)(2) (2007). This time limit does not apply if the basis
for the motion to reopen is to seek asylum or withholding of
removal based on changed country conditions, “if such evidence is
material and was not available and would not have been discovered
or presented at the previous proceeding.” 8 U.S.C.A.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii) (2007).
“A motion to reopen proceedings shall state the new facts that will
be proven at a hearing to be held if the motion is granted and
shall be supported by affidavits or other evidentiary material.”
8 C.F.R. § 1003.2(c)(1) (2007). We review the Board’s denial of a
motion to reopen for abuse of discretion. 8 C.F.R. § 1003.2(a)
(2007); INS v. Doherty, 502 U.S. 314, 323-24 (1992); Barry v.
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Gonzales, 445 F.3d 741, 744 (4th Cir. 2006), cert. denied, 127 S.
Ct. 1147 (2007). A denial of a motion to reopen must be reviewed
with extreme deference, since immigration statutes do not
contemplate reopening and the applicable regulations disfavor
motions to reopen. M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990)
(en banc). We find the Board did not abuse its discretion in
denying the motion to reopen as both untimely and for failing to
establish changed country conditions.
We further find the Board properly found it was without
jurisdiction to consider Lin’s successive asylum application. See
Zheng v. Mukasey, 509 F.3d 869 (8th Cir. 2007); Chen v. Gonzales,
498 F.3d 758, 760 (7th Cir. 2007).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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