Xiaolan Shi v. Alberto Gonzales , 263 F. App'x 539 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1074
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Xiaolan Shi, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael B. Mukasey,1 *
* [UNPUBLISHED]
Respondent. *
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Submitted: February 7, 2008
Filed: February 12, 2008
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Before BYE, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.
Xiaolan Shi, a citizen of China, petitions for review of an order of the Board of
Immigration Appeals (BIA) denying her motion to reopen or reconsider the BIA’s
earlier decision affirming an immigration judge’s removal order and denial of asylum,
withholding of removal, and relief under the Convention Against Torture. After
carefully reviewing the record, we deny the petition.
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Michael B. Mukasey, has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
We review for abuse of discretion the BIA’s denial of a motion to reopen or
reconsider, see Kanyi v. Gonzales, 406 F.3d 1087, 1089 (8th Cir. 2005) (motion to
reopen); Esenwah v. Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004) (motion to
reconsider), without examining the merits of the underlying removal order, see
Raffington v. INS, 340 F.3d 720, 721, 724 (8th Cir. 2003).
We conclude the BIA acted within its discretion in denying as untimely Shi’s
September 27, 2006 motion to reopen or reconsider the BIA’s June 16, 2006 final
order. See 8 U.S.C. § 1229a(c)(6)(B) (motion to reconsider must be filed within 30
days of final removal order); 8 U.S.C. § 1229a(c)(7)(C)(i) (motion to reopen must be
filed within 90 days of final removal order). The BIA also did not abuse its discretion
in finding that the exception to the time limit for changed country conditions did not
apply. See 8 U.S.C. § 1229a(c)(7)(C)(ii) (time limitation does not apply to motion to
reopen to apply for asylum or withholding of removal based on changed
circumstances arising in country to which alien is to be removed, if evidence of
change is material and could not have been discovered or presented at previous
hearing). The evidence Shi submitted with her motion--a letter from her husband
dated “July 24 night” and stating that police had inquired as to Shi’s whereabouts--
was insufficient to establish changed conditions in China: the letter did not bear a
valid date or give any indication as to when it was received by Shi, and it did not
explain what information the police had wanted or when they had made the inquiries.
Cf. Panjwani v. Gonzales, 401 F.3d 626, 632-33 (5th Cir. 2005) (BIA did not abuse
its discretion in refusing to reopen deportation proceedings based on untimely nature
of motion and insufficient evidence--lacking in detail--that country conditions had
materially changed). Shi’s newly asserted claim of ineffective assistance of counsel
is not reviewable. See Etchu-Njang v. Gonzales, 403 F.3d 577, 581-84 (8th Cir. 2005)
(alien must present claim of ineffective assistance to BIA, either on direct
administrative appeal or in motion to reopen, before he may obtain judicial review
claim).
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Accordingly, we deny the petition.
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