Ponhuata v. Holder , 358 F. App'x 974 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 16 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAY PONHUATA, No. 07-74392
Petitioner, Agency No. A070-088-705
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2009**
Withdrawn from Submission July 24, 2009
Resubmitted December 14, 2009
Las Vegas, Nevada
Before: GOULD and RAWLINSON, Circuit Judges, and BEISTLINE, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
Petitioner, Jiazhong Dong, a.k.a. Tay Ponhuata (“Dong”), a native and
citizen of China, petitions for review of an order by the Board of Immigration
Appeals (BIA) denying his motion to reopen to file a successive asylum
application. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and we deny the
petition.
First, the BIA did not abuse its discretion by rejecting as time barred Dong’s
motion, filed more than ninety days after the agency entered a final administrative
order, because Dong did not establish a material change in country conditions. See
8 U.S.C. § 1229a(c)(7)(C)(i)–(ii) (requiring that a petitioner show a change in
country conditions to avoid the ninety-day time bar); see also Chen v. Mukasey,
524 F.3d 1028, 1030 (9th Cir. 2008) (same). The BIA explicitly addressed all
documentary evidence submitted by Dong, and was within its discretion in
concluding that the evidence was insufficient to establish a material change in
enforcement of China’s one-child policy against similarly situated individuals. See
Lin v. Holder, --- F.3d ----, No. 08-71227, 2009 WL 4360802, at *7 (9th Cir. Dec.
3, 2009).
Second, Dong’s argument that he is entitled to file a free-standing asylum
application pursuant to 8 U.S.C. § 1158(a)(2)(D) is foreclosed by our precedent.
See Chen, 524 F.3d at 1032 (holding the BIA’s determination that an asylum
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application by an alien subject to a final order of removal can be made only in
connection with a motion to reopen under § 1229a(c)(7) is “reasonable, and we
defer to it”).
Finally, the BIA did not abuse its discretion in denying Dong’s motion to
reopen for protection under the Convention Against Torture, given that Dong did
not meet his threshold burden to establish materially changed conditions in China.
PETITION DENIED.
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