Liu v. United States Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 14, 2006
No. 05-11739
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-424-571
MIN LIU,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE,
Respondents.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 14, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner Min Liu, a native and citizen of China, proceeding pro se,
petitions for review of the BIA's decision affirming the IJ’s denial of asylum,
withholding of removal, and relief under CAT, and the BIA’s denial of his motion
to reopen.
On appeal, petitioner first argues that because the Chinese government is
still enforcing its one-child family planning policy and couples who want to have
more children are forcibly sterilized, and since he and his current wife plan on
having a large family, they fear forced abortions or sterilization, as well as torture,
imprisonment and hard labor. Further, Liu argues that his attempt to gain political
asylum in the United States will subject him to torture if he returns to China, as the
government views those who apply for political asylum as political enemies. He
argues that his asylum application was unfairly denied, and his appeal to the BIA
was unfairly dismissed. In response, the government argues that we lack
jurisdiction to consider claims regarding the BIA’s denial of the asylum
application.
We consider de novo whether we have subject-matter jurisdiction. See
Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002). By statute, an alien
seeking review of a final order of the BIA must file a petition for review within 30
days of the issuance of the final order. INA § 242(b)(1); 8 U.S.C. § 1252(b)(1).
An order of removal becomes final upon, inter alia, the dismissal of an appeal by
the BIA. See 8 C.F.R. § 1241.1(a). “[T]he statutory limit for filing a petition for
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review in an immigration proceeding is ‘mandatory and jurisdictional,’ [and,
therefore,] it is not subject to equitable tolling.” Dakane v. U.S. Att’y Gen., 399
F.3d 1269, 1272 n.3 (11th Cir. 2005) (quoting Stone v. INS, 514 U.S. 386, 405, 115
S. Ct. 1537, 1549, 131 L. Ed. 2d 465 (1995)). The late filing of a motion to
reopen or reconsider does not affect the need to file a separate petition appealing
the deportation order. Stone, 514 U.S. at 394, 115 S. Ct. at 1543-44.
Because the record here demonstrates that the BIA denied all relief and
issued its final order of removal on June 29, 2004, and Liu did not file a petition
for review within the regulatory deadline, we have no jurisdiction to review the
denial of asylum, withholding of removal, and CAT relief. Accordingly, our
jurisdiction is limited to reviewing the BIA’s April 11, 2005 decision denying
Liu’s motion for reconsideration. We dismiss that portion of Liu’s petition
challenging the underlying ruling for lack of jurisdiction.
Liu also argues without elaboration that his motion to reopen was unfairly
denied. Even construing his pro se brief liberally, see Saleem v. Evans, 866 F.2d
1313, 1316 (11th Cir.1989), merely mentioning a claim is not sufficient to avoid a
finding that the issue is abandoned, see Allison v. McGhan Med. Corp., 184 F.3d
1300, 1317 n.17 (11th Cir. 1999) (“Issues that are not clearly outlined in an
appellant's initial brief are deemed abandoned.”). Liu’s arguments were that he
was entitled to asylum, withholding of removal, and relief under CAT because of
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the continuing political stance China takes towards family planning and those who
seek political asylum. As explained above, those arguments are an attempt to
advance a claim over which we lack jurisdiction, as Liu did not file a timely appeal
from the BIA’s final removal order. (See generally, administrative papers at 12,
A.R. at 27). We could deny the petition as to the reconsideration order for this
reason alone. See Allison, 184 F.3d at 1317 n.17. However, petitioner’s claim fails
on the merits as well.
We review the BIA’s denial of a motion to reopen for an abuse of discretion,
and “the BIA’s discretion is quite broad.” Gbaya v. U.S. Att’y Gen., 342 F.3d
1219, 1220 (11th Cir. 2003) (quotation omitted). Only one motion to reopen is
allowed, and it must be filed within 90 days of the date of the BIA’s final
administrative removal order. See INA § 240(c)(6)(A), (C)(i), 8 U.S.C.
§ 1229a(c)(6)(A),(c)(i).
The regulations provide that, “[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). Such motion “shall not be granted unless it appears to the [BIA]
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. See also, INA §
240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B) (stating that the motion “shall state the
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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.”). There is an
exception to the filing deadline contained in the regulations when the motion “is
based on changed country conditions arising in the country of nationality or the
country to which removal has been ordered, if such evidence is material and was
not available and could not have been discovered or presented at the previous
proceeding.” 8 C.F.R. § 1003.23(b)(4)(i).
We have stated that the congressional filing deadlines should be read
literally by federal courts and held that the time limitations in INA § 242B(c)(3)(A)
were “jurisdictional and mandatory.” Anin v. Reno, 188 F.3d 1273, 1278 (11th Cir.
1999). Further, “[m]otions to reopen are disfavored, especially in a removal
proceeding, ‘where, as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.’” Abdi v. U.S.
Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005) (citation omitted). We noted
that, although the limitation in 8 C.F.R. § 1003.2(c)(2) may be subject to the
doctrine of equitable tolling, “[u]nder Anin’s rationale, the statutory 90-day period
for filing a notice of appeal is mandatory and jurisdictional, and, therefore, it is not
subject to equitable tolling. . . . [O]ur reasoning in Anin is not specific to in
absentia orders.” Id.We conclude from the record that the BIA did not err by denying Liu’s
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untimely motion to reopen the hearing based on his wife’s pregnancy because the
pregnancy was not a changed circumstance which excuses the untimeliness nor is it
a basis to grant asylum relief.
For the above stated reasons, we dismiss the petition in part and deny the
petition in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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