Feng Fu Yang v. Holder

08-1480-ag
Yang v. Holder
BIA
Nelson, IJ
A 072 780 392
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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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 8 th day of June, two thousand ten.

PRESENT:
REENA RAGGI,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
______________________________________

FENG FU YANG,
Petitioner,
08-1480-ag
v. NAC
ERIC H. HOLDER, JR., * UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Waisim M. Cheung, Tsoi and
Associates, New York, New York.

FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General, Civil Division;
David V. Bernal, Assistant Director;

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
Jesse M. Bless, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner, Feng Fu Yang, a native and citizen of the

People’s Republic of China, seeks review of a March 6, 2008

order of the BIA affirming Immigration Judge (“IJ”) Barbara

A. Nelson’s September 22, 2005 denial of his motion to

reopen. In re Feng Fu Yang, No. A 072 780 392 (BIA Mar. 6,

2008), aff’g No. A 072 780 392 (Immig. Ct. N.Y. City Sept.

22, 2005). We review the agency’s denial of Yang’s motion

to reopen for abuse of discretion, “mindful that motions to

reopen ‘are disfavored.’” Ali v. Gonzales, 448 F.3d 515,

517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314,

323 (1992)). In doing so, we assume the parties’

familiarity with the underlying facts and procedural

history, which we reference only to explain our decision to

deny the petition for review.

Because Yang’s motion to reopen was filed nine years

after the IJ’s May 28, 1996 final order granting him

2
voluntary departure -- well after the applicable ninety-day

time limit -- it was untimely. See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). To the extent

Yang relies on an exception to this time limit for motions

to reopen based on material and previously unavailable

evidence of changed country conditions, see 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), we have

previously reviewed the agency’s consideration of evidence

similar to that submitted by Yang and identified no error in

its conclusion that such evidence is insufficient to

establish either material changed country conditions or an

alien’s prima facie eligibility for relief, see Jian Hui

Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir. 2008); see

also Wei Guang Wang v. BIA, 437 F.3d 270, 274-75 (2d Cir.

2006).

Further, contrary to Yang’s argument, “the BIA need not

expressly parse or refute on the record each individual

argument or piece of evidence offered by the petitioner.”

Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007)

(internal quotation marks omitted); cf. Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 336-37 n.17 (2d Cir. 2006)

(“[T]he IJ need not engage in ‘robotic incantations’ to make

3
clear that [s]he has considered and rejected a petitioner’s

proffered explanation.”). “This is particularly true for

evidence, such as the oft-cited Aird affidavit, which the

BIA is asked to consider time and again.” Wei Guang Wang v.

BIA, 437 F.3d at 275. Accordingly, the BIA did not abuse

its discretion in concluding that Yang’s motion was

untimely.

Nor did the BIA abuse its discretion in denying Yang’s

motion to reopen to apply for adjustment of status, because

adjustment of status is not an exception to the applicable

time limitation on motions to reopen. See 8 U.S.C.

§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter

of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing

“that untimely motions to reopen to pursue an application

for adjustment of status . . . do not fall within any of the

statutory or regulatory exceptions to the time limits for

motions to reopen before the Board and will ordinarily be

denied”). Finally, to the extent Yang asserts that his

motion warranted a favorable exercise of the BIA’s

discretion to reopen proceedings sua sponte, we lack

jurisdiction to review such a discretionary decision. See

Ali v. Gonzales, 448 F.3d at 518.

4
For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any pending motion

for a stay of removal in this petition is DISMISSED 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