Xiu Yan Jin v. Lynch

14-4673
Jin v. Lynch
BIA
Christensen, IJ
A200 179 471
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of February, two thousand sixteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 JOSÉ A. CABRANES,
10 Circuit Judges.
11 _____________________________________
12
13 XIU YAN JIN,
14 Petitioner,
15
16 v. 14-4673
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Gerald Karikari, New York,
25 New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General;
29 Jennifer P. Willams, Senior
30 Litigation Counsel; Alexander J.
1 Lutz, Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Xiu Yan Jin, a native and citizen of the People’s
11 Republic of China, seeks review of a November 20, 2014, decision
12 of the BIA that (1) affirmed a November 27, 2012, decision of
13 an Immigration Judge (“IJ”), pretermitting as untimely her
14 application for asylum, and (2) denied her motion to remand.
15 In re Xiu Yan Jin, No. A200 179 471 (B.I.A. Nov. 20, 2014), aff’g
16 No. A200 179 471 (Immig. Ct. N.Y. City Nov. 27, 2012). We assume
17 the parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 The only issue before us is whether the BIA abused its
20 discretion in denying Jin’s motion to remand. We review the
21 BIA’s denial of a motion to remand for abuse of discretion. Li
22 Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.
23 2005). “A motion to remand that relies on newly available
2
1 evidence is held to the substantive requirements of a motion
2 to reopen.” Id. at 156. A movant seeking remand for
3 consideration of new evidence must “present material,
4 previously unavailable evidence.” Id. at 158; see also
5 8 C.F.R. § 1003.2(c)(1). “[I]n reviewing the BIA’s
6 determination of whether previously unavailable evidence
7 supported [a] motion to reopen, we must inquire whether the
8 evidence could have been presented at the hearing before the
9 IJ.” Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006).
10 The BIA did not abuse its discretion in denying Jin’s motion
11 for failure to submit previously unavailable evidence. Jin’s
12 evidence predated her 2012 hearing, and her ex-husband’s
13 affidavit discussed events that occurred prior to that hearing.
14 The BIA did not abuse its discretion in rejecting Jin’s argument
15 that her ex-husband refused to provide her with this evidence
16 in her underlying proceedings because he made no mention of any
17 such refusal in the affidavit he prepared in support of her
18 motion to remand. See Ke Zhen Zhao v. U.S. Dep’t of Justice,
19 265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may be
20 found in those circumstances where the Board’s decision
21 provides no rational explanation, inexplicably departs from
3
1 established policies, is devoid of any reasoning, or contains
2 only summary or conclusory statements; that is to say, where
3 the Board has acted in an arbitrary or capricious manner.”
4 (internal citations omitted)).
5 Accordingly, the BIA did not abuse its discretion in
6 denying Jin’s motion to remand. See 8 C.F.R. § 1003.2(c)(1);
7 Li Yong Cao, 421 F.3d at 156.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O=Hagan Wolfe, Clerk
4