08-1480-ag
Yang v. Holder
BIA
Nelson, IJ
A 072 780 392
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
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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
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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
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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
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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.
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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
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