Zhenghao Liu v. Holder , 364 F. App'x 90 ( 2010 )

Case: 08-61082 Document: 00511020050 Page: 1 Date Filed: 02/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2010
No. 08-61082
Summary Calendar Charles R. Fulbruge III
Clerk
ZHENGHAO LIU,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 367 597
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Zhenghao Liu, a citizen of the People’s Republic of China, petitions for
review of the Board of Immigration Appeals’ (“BIA”) November 4, 2008 order
(“November 4th Order”), denying Liu’s motion to reconsider its earlier denial to
reopen Liu’s application for asylum. Because the BIA did not abuse its
considerable discretion in this matter, we deny Liu’s petition.
*
Pursuant to 5TH CIR . R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
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No. 08-61082
I. FACTUAL AND PROCEDURAL BACKGROUND
Liu entered the United States illegally in 2003. In January 2004, Liu filed
an application for asylum, withholding of removal, and protection under the
implementing regulations of the United States’ adoption of the Convention
Against Torture. The Department of Homeland Security (“DHS”) commenced
removal proceedings against Liu in April 2004. An Immigration Judge (“IJ”)
considered Liu’s application and DHS’s removal proceeding at trial. The IJ
denied Liu’s requested relief, found that he was not eligible for voluntary
departure, and ordered that he should be removed to China. The BIA dismissed
Liu’s administrative appeal of the IJ’s order on April 30, 2007.
Liu did not file a petition for review of the BIA’s dismissal. Rather, on
June 16, 2008, Liu filed a motion to reopen his original application for asylum
with the BIA, claiming asylum under a new theory. Liu alleged that, while in
DHS custody, he was baptized as a Christian. He subsequently sent religious
materials, including a copy of his baptism certificate, to relatives in China. Liu
also submitted papers purporting to show that local Chinese officials learned of
Liu’s mailings and informed his mother that he must report to Chinese
authorities for questioning or be subject to arrest. Liu claimed these new
developments established a well-founded fear of persecution on the basis of his
religious beliefs.
In an August 20, 2008 order (“August 20th Order”), the BIA rejected Liu’s
motion to reopen as untimely. The BIA found that Liu’s motion to reopen did not
fall within the exception for changed country conditions because Liu’s conversion
amounted to a change in personal circumstances. Liu’s supporting documents
did not persuade the BIA, which noted errors of authentication and questions
concerning originality.
Liu responded to the August 20th Order with two motions: a petition for
review, filed with this Court on September 29, 2008, and a motion to reconsider,
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filed with the BIA on September 18, 2009. We rejected Liu’s petition for review
as untimely in a December 22, 2008 order. The BIA denied Liu’s motion to
reconsider in its November 4th Order, finding that Liu offered no new or
previously unavailable evidence, and that Liu had failed to demonstrate an error
of fact or law in the BIA’s August 20th Order. Liu petitions us for review of that
denial.
II. ANALYSIS
In his petition, Liu asks us to review the BIA’s denial of his motion to
reopen as well as its denial of his motion to reconsider. The Government
contends that Liu improperly seeks collateral review of the BIA’s August 20th
Order. We agree that a party may not collaterally attack a BIA ruling in a
petition for review of a motion to reconsider. See Guervara v. Gonzales, 450 F.3d
173, 176 (5th Cir. 2006) (holding that DHS’s motion to reconsider was a
collateral attack on a BIA order). We also agree that Liu wrongly asks us to
review the BIA’s August 20th Order denying his motion to reopen.
We previously held that Liu’s motion to reopen the August 20th Order was
untimely. Despite this ruling, Liu focuses his arguments on alleged errors in the
BIA’s August 20th Order, arguing that the BIA improperly rejected Liu’s offered
evidence as unauthenticated and unoriginal. Liu’s attempt to solicit our review
of the August 20th Order clearly falls outside of the thirty-day statutory
limitation provided by 8 U.S.C. § 1252(b)(1), and we therefore lack jurisdiction
to consider Liu’s arguments against the BIA’s August 20th Order. Cf. Guirguis
v. INS, 993 F.2d 508, 509 (5th Cir. 1993) (holding that the “time limit for filing
a petition for review of a final order of deportation” is jurisdictional). We
therefore constrain our consideration of Liu’s petition to his arguments against
the BIA’s November 4th Order denying his motion for reconsideration.
We review the BIA’s denial of Liu’s motion to reconsider under a highly
deferential abuse of discretion standard. 8 C.F.R. § 1003.2(a) (“The decision to
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grant or deny a motion to reopen or reconsider is within the discretion of the
Board . . . .”); Zhao v. Gonzales, 404 F.3d 295, 301 (5th Cir. 2005) (reviewing a
motion to reconsider for abuse of discretion). “[W]e will not disturb the BIA’s
discretion so long as it ‘is not capricious, racially invidious, utterly without
foundation in the evidence, or otherwise so irrational that it is arbitrary rather
than the result of any perceptible rational approach.’” Chambers v. Mukasey, 520
F.3d 445, 448 (5th Cir. 2008) (quoting Singh v. Gonzales, 436 F.3d 484, 487 (5th
Cir. 2006)).
Liu fails to specify any errors of law or fact in the BIA’s August 20th
Order. See 8 U.S.C. § 1229a(c)(6)(C) (requiring that a motion to reconsider to
“specify the errors of law or fact in the previous order”); 8 C.F.R. § 1003.2(b)(1)
(same). Rather, Liu offers explanations for his failure to submit authenticated
or original evidence in his original motion to reopen. Liu’s proffered
explanations do not establish that the BIA abused its considerable discretion
when it denied his motion to reconsider.
III. CONCLUSION
For the foregoing reasons, we deny Liu’s petition to review the BIA’s denial
of his motion to reconsider.
DENIED.
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