Jian Xi Hu v. Holder

11-2570-ag
Hu v. Holder
BIA
A073 572 721
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
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RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
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REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of September, two thousand twelve.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
JIAN XI HU,
Petitioner,
v. 11-2570-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Luis E. Perez, Senior
Litigation Counsel; Don G. Scroggin,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Jian Xi Hu, a native and citizen of the People’s
Republic of China, seeks review of a June 8, 2011 decision
of the BIA denying her motion to reopen. In re Jian Xi Hu,
No. A073 572 721 (B.I.A. June 8, 2011). We review the BIA’s
denial of such a motion for abuse of discretion, mindful of
the Supreme Court’s admonition that such “motions . . . are
disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006) (quoting INS v. Doherty, 502 U.S. 314, 323 (1992))
(internal quotation marks omitted). We assume the parties’
familiarity with the underlying facts and the procedural
history of this case.
Hu first argues that the BIA erred in concluding that
her motion to reopen was untimely. We are not persuaded.
Aliens seeking to reopen proceedings may file one motion to
reopen no later than 90 days after the date on which the
final administrative decision was rendered. See 8 U.S.C.
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§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is
undisputed that Hu’s March 23, 2011 motion to reopen was
untimely because the BIA issued its final order of removal
on October 24, 2002. However, the time and number
limitations for filing a motion to reopen do not apply if
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 would not have been discovered or
presented at the previous proceedings.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3)(ii).
Although Hu submitted articles and reports describing
government harassment, arrest, and interrogation of members
of underground churches in China, the BIA concluded that
those materials did not describe a change in country
conditions since Hu’s January 2000 hearing. See Matter of
S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007) (comparing
“the evidence of country conditions submitted with the
motion to those that existed at the time of the merits
hearing below”). Substantial evidence supports that
conclusion. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008) (applying substantial evidence standard to
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agency’s reliance on background materials to find no
material change in country conditions). Indeed, a 1998 U.S.
State Department Report on conditions in China that Hu
submitted to the immigration judge (“IJ”) in January 2000
reflects that, by that time, the Chinese government already
had a policy of repressing unregistered church activity,
that unregistered religious groups had been “hard hit” in
many provinces, and that the government had targeted the
members and leaders of unregistered underground Christian
churches for persecution, including through surveillance,
detentions, arrests, and property destruction. Thus, the
agency did not abuse its discretion in denying Hu’s motion
to reopen as untimely.
Hu further contends that the BIA abused its discretion
in declining to reopen her case based on the alleged bias of
the IJ. To the extent Hu appears to challenge the BIA’s
decision not to reopen her case sua sponte under 8 C.F.R. §
1003.2(a), we lack jurisdiction to review the claim because
such a decision is “entirely discretionary.” Azmond Ali v.
Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). Moreover,
insofar as the BIA construed Hu’s motion as one seeking
remand based on the IJ’s alleged bias, the BIA did not abuse
its discretion in declining to remand on that ground. See
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Li Yong Cao v. U.S Dep’t of Justice, 421 F.3d 149, 157 (2d
Cir. 2005) (stating that abuse of discretion may be found
only where BIA’s “decision provides no rational explanation,
inexplicably departs from established policies, is devoid of
any reasoning, or contains only summary or conclusory
statements” (internal quotation marks omitted)).
As the BIA properly concluded, Hu’s reliance on Islam
v. Gonzales, 469 F.3d 53 (2d Cir. 2006), is misplaced. In
Islam, the BIA adopted and affirmed a decision by IJ Jeffrey
S. Chase, the same IJ who denied Hu’s application. See id.
at 54-55. We remanded the BIA’s decision because we
identified specific instances of IJ Chase badgering,
interrupting, and sparring with the petitioner, all of which
combined to “create[] an atmosphere in which it might have
been difficult for [the petitioner] to advocate fully on his
own behalf,” id. at 56, such that there was “substantial
uncertainty as to whether the record below was fairly and
reliably developed,” id. Although IJ Chase’s comments in
this case regarding Chinese asylum applicants may well have
been inappropriate, there is no indication that the record
at Hu’s January 2000 hearing was anything other than fairly
and reliably developed, or that the IJ was biased against
Hu, or that he interfered with her or her counsel’s ability
to advocate on her behalf.
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For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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