Guo v. Garland

21-6512
Guo v. Garland
BIA
A077 978 090
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 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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 20th day of November, two thousand
4 twenty-three.
5
6 PRESENT:
7 REENA RAGGI,
8 RICHARD J. SULLIVAN,
9 BETH ROBINSON,
10 Circuit Judges.
11 _____________________________________
12
13 MIN GUO,
14 Petitioner,
15
16 v. 21-6512
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
1 FOR PETITIONER: Meer M. M. Rahman, New York, NY.
2
3 FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant
4 Attorney General; Sabatino F. Leo, Assistant
5 Director; Colin J. Tucker, Trial Attorney,
6 Office of Immigration Litigation, United
7 States Department of Justice, Washington,
8 DC.
9 UPON DUE CONSIDERATION of this petition for review of a Board of
10 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is DENIED.
12 Petitioner Min Guo, a native and citizen of the People’s Republic of China,
13 seeks review of an August 23, 2021 decision of the BIA denying his motion to
14 reopen proceedings ordering his removal from the United States. In re Min Guo,
15 No. A077 978 090 (B.I.A. Aug. 23, 2021). We review that denial decision for abuse
16 of discretion, Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006), which is not evident
17 here. We assume the parties’ familiarity with the underlying facts and
18 procedural history, which we reference only as necessary to explain our denial of
19 review.
20 While a motion to reopen must generally be filed within 90 days of a
21 removal order, see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2), a one-year
22 deadline applies when, as in Guo’s case, reopening was sought to apply for lawful
2
1 immigrant status based on a visa self-petition filed by an alien physically present
2 in the United States who “has been battered or has been the subject of extreme
3 cruelty perpetrated by” a U.S. citizen spouse, 8 U.S.C. § 1154(a)(1)(A)(iii)(I)(bb); see
4 id. § 1229a(c)(7)(C)(iv). The BIA may “waive this [one-year] time limitation in the
5 case of an alien who demonstrates extraordinary circumstances or extreme
6 hardship to the alien’s child.” Id. § 1229a(c)(7)(C)(iv)(III).
7 Although the BIA applied the general 90-day filing deadline and not the
8 applicable one-year deadline for battered spouses, this fact does not warrant
9 remand because, as Guo acknowledges, his motion, filed 15 years after the BIA’s
10 removal order, was clearly untimely under either deadline. See Pet’r’s Br. 7
11 (“Although Petitioner’s motion to reopen is untimely . . . .”); Ajdin v. Bureau of
12 Citizenship & Immigr. Servs., 437 F.3d 261, 266 (2d Cir. 2006) (explaining that
13 harmless error by the BIA does not necessitate remand). Nor does Guo argue that
14 section 1229a(c)(7)(C)(iv)(III)’s “extraordinary circumstances” exception to the
15 one-year deadline should apply. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
16 n.1, 545 n.7 (2d Cir. 2005) (deeming issue abandoned when not argued in brief).
17 Rather, he appears to fault the BIA’s refusal to apply a different exception, that of
18 section 1229a(c)(7)(C)(ii), which provides that “[t]here is no time limit on the filing
3
1 of a motion to reopen” an asylum or withholding of removal claim on the basis of
2 “changed country conditions.” See 8 C.F.R. § 1003.2(c)(3)(ii); Pet’r’s Br. 7 (stating
3 without elaboration that Guo “has demonstrated changed conditions which allow
4 the motion to be exempt from the time limitation”); id. at 9 (referencing “a change
5 in circumstances since the time of the original hearing”). To the extent Guo
6 challenges the BIA’s refusal to apply that exception, which he never cites in his
7 brief, the BIA correctly concluded that he failed to provide evidence of changed
8 country conditions, as opposed to changed personal circumstances. See Zheng v.
9 DOJ, 416 F.3d 129, 130-31 (2d Cir. 2005) (holding that 8 C.F.R. § 1003.2(c)(3)(ii) does
10 not apply to changed personal circumstances, only changed country conditions).
11 For the foregoing reasons, the petition for review is DENIED. All pending
12 motions and applications are DENIED and stays VACATED.
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe,
15 Clerk of Court
4