Yang Zhen Qiu v. Holder , 343 F. App'x 860 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1247
YANG ZHEN QIU, a/k/a Yaog Zhen Qiu, a/k/a You Zhen Qiu,
a/k/a Xiang Qiu, a/k/a Yang Zhen Qui,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 21, 2009 Decided: September 9, 2009
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Theodore N. Cox, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, Anh-Thu P. Mai-Windle, Senior
Litigation Counsel, Thomas B. Fatouros, 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Unpublished opinions are not binding precedent in this circuit.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:
Yang Zhen Qiu, a native and citizen of the People’s
Republic of China, petitions for review of an order of the
Board of Immigration Appeals denying her motion to reopen.
Because we find the Board did not abuse its discretion in
denying the motion, 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.
§ 1229a(c)(7)(A), (C) (2006); 8 C.F.R. § 1003.2(c)(2) (2009).
This time limit does not apply if the basis for the motion 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. § 1229a(c)(7)(C)(ii) (2006); see also 8
C.F.R. § 1003.2(c)(3)(ii).
This court reviews the denial of a motion to reopen
for abuse of discretion. 8 C.F.R. § 1003.2(a) (2009); INS v.
Doherty, 502 U.S. 314, 323-24 (1992); Mosere v. Mukasey, 552
F.3d 397, 400 (4th Cir. 2009), petition for cert. filed (June 8,
2009) (No. 08-10795). 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 such motions. M.A. v. INS, 899 F.2d 304, 308 (4th Cir.
1990) (en banc). The motion “shall state the new facts that
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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) (2009). It “shall not be
granted unless it appears to the Board that evidence sought to
be offered is material and was not available and could not have
been discovered or presented at the former hearing.” Id.This court has also recognized three independent
grounds on which a motion to reopen removal proceedings may be
denied: “(1) the alien has not established a prima facie case
for the underlying substantive relief sought; (2) the alien has
not introduced previously unavailable, material evidence; and
(3) where relief is discretionary, the alien would not be
entitled to the discretionary grant of relief.” Onyeme v. INS,
146 F.3d 227, 234 (4th Cir. 1998) (citing INS v. Abudu, 485 U.S.
94, 104-05 (1988)). In adhering to the degree of deference
given to the Board on discretionary review, this court has
observed that a decision to deny a motion to reopen “need only
be reasoned, not convincing.” M.A., 899 F.2d at 310. This
court will reverse a denial of a motion to reopen only if it is
“‘arbitrary, irrational, or contrary to law.’” Mosere, 552 F.3d
at 400 (citing Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
2002)).
We have considered Qiu’s arguments on appeal and
conclude the Board did not abuse its discretion in denying her
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motion to reopen. We note the record does not compel a finding
that she made a prima facie showing of a well-founded fear of
persecution.
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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