Li Xue Yue v. Gonzales

SUMMARY ORDER

Li Xue Yue petitions for review of the BIA decision denying her motion to reopen. We assume the parties’ familiarity with the underlying facts and procedural history.

We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements or where the Board has acted in an arbitrary or capricious manner.” Kaur, 413 F.3d at 232; see also Ke Zhen Zhao v. DOJ, 265 F.3d 83, 93 (2d Cir.2001) (internal citations omitted).

Yue contends that the BIA abused its discretion in denying her Motion to Reopen, because it did not specifically consider her contention that her motion to reopen should not be subject to the numerical limitations on motions to reopen. In support of her argument, Yue cites 8 C.F.R. § 1003.2(c)(3), which states that the time and numerical limitations shall not apply to a motion to open proceedings, “to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.”

However, this exception to the time and numerical limitations for filing motions to reopen only applies if the basis of the motion is to apply or reapply for asylum or withholding of deportation based on changed country circumstances. Yue’s argument is specious, because the basis of her most recent Motion to Reopen is not to apply or reapply for asylum but rather, “to allow her an opportunity to apply for adjustment of status and any other relief she might be eligible [sic].” Moreover, Yue listed three reasons that the time and number limitations should not apply to the instant motion including changed country conditions, yet, nowhere in the motion does Yue explain how the changed country conditions serve as the basis for the Motion to Reopen. Yue cannot qualify for the exception merely by plainly pleading “changed country conditions,” without articulating how those conditions affect her asylum claim. Accordingly, the exception is not applicable here.

The BIA’s reasoning as to why the exception does not apply may not be explicit, but its conclusion that it does not apply is correct. It would be unreasonable to expect the BIA to articulate why each and every exception in the regulations is inapplicable in a particular case. Yue has failed to show that the BIA abused its discretion in denying her Motion to Reopen.

For the foregoing reasons, Lu’s petition for review is DENIED. Having 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. Any pending request for oral arguments is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), Second Circuit Local Rule 34(d)(1).