Mai Yang v. Michael Mukasey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3275
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Mai Yang, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael B. Mukasey, *
Attorney General * [UNPUBLISHED]
*
Respondent. *
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Submitted: May 21, 2008
Filed: May 27, 2008
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Before BYE, SMITH, and BENTON , Circuit Judges.
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PER CURIAM.
Mai Yang, a native and citizen of Laos, petitions for review of an order of the
Board of Immigration Appeals (BIA) denying her motion to reopen immigration
proceedings to apply for asylum on account of her Hmong ethnicity and Christian
beliefs.1 We deny the petition.
1
The BIA also denied Yang’s motion for reconsideration of an earlier denial of
adjustment of status based on Yang’s marriage to a United States citizen. We do not
address the adjustment claim, however, because Yang stated in her brief before us that
her adjustment claim was moot as she filed for divorce from her spouse.
We conclude the BIA acted within its discretion in denying Yang’s motion to
reopen. See Kanyi v. Gonzales, 406 F.3d 1087, 1089 (8th Cir. 2005) (review
standard). Yang did not present evidence that conditions in Laos had changed since
her removal hearing so that she now had, but did not previously have, reason to fear
persecution in Laos on account of her Hmong ethnicity and her Christian faith. See
Zheng v. Mukasey, 509 F.3d 869, 871-72 (8th Cir. 2007) (asylum application filed
after entry of final order of removal must be filed in conjunction with motion to
reopen, and alien must meet more restrictive changed-country-conditions requirement;
distinction between changed country conditions and changed personal conditions is
sensible after final order of removal has been entered, since alien can manipulate latter
but not former).
Yang’s newly raised argument that her case should be reopened to allow her to
apply for withholding of removal and Convention Against Torture relief on account
of her extra-marital pregnancy is not reviewable, because she did not move for
reopening below on this basis, and thus she has not exhausted administrative
remedies. See 8 U.S.C. § 1252(d)(1) (alien must exhaust all available administrative
remedies); Ixtlilco-Morales v. Keisler, 507 F.3d 651, 656 (8th Cir. 2007) (appeals
court lacks jurisdiction to review issue not presented to BIA).
Accordingly, we deny the petition.
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