09-3512-ag
Shao v. Holder
BIA
A073 568 657
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 31 st day of March, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 ______________________________________
13
14 LIANG WEI SHAO,
15 Petitioner,
16 09-3512-ag
17 v. NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Galab B. Dhungana, New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony C. Payne, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation; Lance L.
31 Jolley, Trial Attorney, Office of
32 Immigration Litigation, Civil
33 Division, United States Department
34 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner, Liang Wei Shao, a native and citizen of the
6 People’s Republic of China, seeks review of a July 20, 2009,
7 order of the BIA denying his motion to reopen his removal
8 proceedings. In re Liang Wei Shao, No. A 073 568 657
9 (B.I.A. July 20, 2009). We assume the parties’ familiarity
10 with the underlying facts and procedural history of the
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
14 Cir. 2006). When the BIA considers relevant evidence of
15 country conditions in evaluating a motion to reopen, we
16 review the BIA’s factual findings under the substantial
17 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
18 138, 169 (2d Cir. 2008).
19 An alien may only file one motion to reopen and must do
20 so within 90 days of the final administrative decision.
21 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). It is
22 indisputable that Shao’s motion to reopen was untimely.
23 However, the time limitation does not apply if the alien
24 establishes materially changed circumstances arising in the
2
1 country of nationality. 8 U.S.C. § 1229a(c)(7)(C)(ii);
2 8 C.F.R. § 1003.2(c)(3)(ii).
3 In denying Shao’s motion to reopen, the BIA found that
4 he failed to demonstrate a change in China’s enforcement of
5 the family planning policy. Shao does not address this
6 finding, and even concedes that the evidence he submitted
7 demonstrated only an ongoing policy of persecution. Because
8 Shao failed to explain how his evidence demonstrated a
9 change in circumstances arising in China, the BIA did not
10 abuse its discretion in denying Shao’s untimely motion to
11 reopen. See 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R.
12 § 1003.2(c)(3)(ii). For these same reasons, Shao’s due
13 process claim is entirely without merit. See Li Hua Lin v.
14 U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006)
15 (noting that due process “requires that an applicant receive
16 a full and fair hearing which provides a meaningful
17 opportunity to be heard.”).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot.
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26
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