Ya Zhi Lin v. Holder

07-4976-ag
Huang v. Holder
BIA
A095 467 413
A095 467 414
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 19 th day of November, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON. O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 YA ZHEN HUANG, JIAN GUO ZHENG,
15 Petitioners,
16
17 v. 07-4976-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Acting Attorney General
Peter D. Keisler as respondent in this case.
0 9 1 4 0 9 -2 6
 1 FOR PETITIONERS: Steven A. Mundie, Baron, Mundie, &
2 Shelkin, P.C., New York, New York.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General; David V. Bernal,
6 Assistant Director; Lindsay E.
7 Williams, Attorney; Office of
8 Immigration Litigation, Civil
9 Division, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a

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

14 ORDERED, ADJUDGED, AND DECREED, that the petition for review

15 is DENIED.

16 Petitiones Ya Zhen Huang and Jian Guo Zheng, natives

17 and citizens of the People’s Republic of China, seek review

18 of an October 15, 2007 order of the BIA denying their motion

19 to reopen. In re Ya Zhen Huang, Jian Guo Zheng, Nos. A095

20 467 413, A095 467 414 (B.I.A. Oct. 15, 2007). We assume the

21 parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 We review the BIA’s denial of a motion to reopen for

24 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

25 Cir. 2006). When the BIA considers relevant evidence of

26 country conditions in evaluating a motion to reopen, we

27 review the BIA’s factual findings under the substantial

2
1 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d

2 138, 169 (2d Cir. 2008).

3 The BIA did not err in denying petitioners’ untimely

4 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also

5 8 C.F.R. § 1003.2(c)(2). Petitioners argue that they

6 established their prima facie eligibility for relief from

7 removal based on the birth of their U.S. citizen children.

8 However, this argument fails because we have previously

9 reviewed the BIA’s consideration of evidence similar to that

10 which petitioners submitted and have found no error in its

11 conclusion that such evidence is insufficient to demonstrate

12 a reasonable possibility of persecution. See Jian Hui Shao,

13 546 F.3d at 169-72 (noting that “[w]e do not ourselves

14 attempt to resolve conflicts in record evidence, a task

15 largely within the discretion of the agency”); see also Wei

16 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting

17 that while the BIA must consider evidence such as “the oft-

18 cited Aird affidavit, which [it] is asked to consider time

19 and again[,] . . . it may do so in summary fashion without a

20 reviewing court presuming that it has abused its

21 discretion”).

22 Petitioners’ arguments related to the filing of a

3
1 successive asylum application, including their equal

2 protection and United Nations Protocol arguments, are

3 without merit. See Yuen Jin v. Mukasey, 538 F.3d 143, 156,

4 158-59 (2d Cir. 2008).

5 For the foregoing reasons, the petition for review is

6 DENIED. As we have completed our review, any stay of

7 removal that the Court previously granted in this petition

8 is VACATED, and any pending motion for a stay of removal in

9 this petition is DISMISSED as moot. Any pending request for

10 oral argument in this petition is DENIED in accordance with

11 Federal Rule of Appellate Procedure 34(a)(2), and Second

12 Circuit Local Rule 34(b).

13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16 By:___________________________

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