Yue Yan Xiao v. Attorney General of the United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 09-1594
___________

YUE YAN XIAO,

Petitioner

ATTORNEY GENERAL OF THE UNITED STATES,
Respondent

____________________________________

On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-648-589)
Immigration Judge: Miriam K. Mills
____________________________________

Submitted Under Third Circuit LAR 34.1(a)
April 14, 2010

Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges

(Opinion filed: May 20, 2010)
_________

OPINION

_________
PER CURIAM

Yue Yan Xiao petitions for review of a final order of removal as well as the denial

of her motions for reconsideration and to reopen immigration proceedings. For the

following reasons, we will deny the petition for review.

Yue Yan Xiao, a native and citizen of the People’s Republic of China, was placed

in removal proceedings for entering the United States without being admitted or paroled

after inspection by an immigration officer. She applied for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”), alleging past

persecution and a fear of future persecution because she practiced Falun Gong.

At the hearing on her application, Xiao testified that she practiced Falun Gong in

China and that officials tried to arrest her because she posted Falun Gong fliers in her

village. She said the police came to her parents’ house with an arrest warrant but she was

not home. She hid at a friend’s house and her parents arranged for her to come to the

United States. Xiao testified that she still practices Falun Gong and fears that she will be

arrested if she returns to China because officials are still looking for her. She gave almost

no details or specifics about these events. The Immigration Judge (“IJ”) found Xiao’s

testimony “meager” and insufficient to establish her entitlement to asylum or other relief.

The IJ also found that Xiao failed to provide corroborating evidence for her claims. The

IJ specifically cited the lack of statements from (1) Xiao’s parents, who could corroborate

2
the attempted arrest and continued search for Xiao; (2) Xiao’s sister, an asylee living in

the United States in whom Xiao confided about her circumstances; and (3) the friend with

whom she hid while waiting to come to the United States. The IJ further noted that Xiao

provided no explanation for failing to obtain this corroboration despite testifying that

either she or her parents could get in touch with all of these individuals. Xiao appealed to

the Board of Immigration Appeals (“BIA”), who adopted and affirmed the IJ’s decision

on May 9, 2008.

About two months later, on July 28, 2008, Xiao filed a “Motion to

Reopen/Reconsider.” She sought to submit additional support for her application in the

form of an article downloaded from the internet entitled “2007, the lost year [sic] for

Falun Gong” and undated photographs of her participating in a Falun Gong demonstration

in New York. On January 30, 2009, the BIA denied the motion. The BIA denied the

motion for reconsideration as untimely because it was filed after the thirty-day deadline.

See 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b)(2). Regarding the request to reopen

proceedings, the BIA denied relief on the basis that Xiao had not demonstrated that her

supporting evidence was material or previously unavailable. See 8 C.F.R. § 1003.2(c)(1).

The BIA further concluded that, even if this supporting evidence were considered along

with the existing evidence of record, it was insufficient to establish eligibility for asylum.

Id. On March 2, 2009, Xiao filed a petition for review of both BIA orders.

II.

3
As a threshold matter, we agree with the Government that we lack jurisdiction to

review the BIA’s May 2008 order dismissing Xiao’s appeal because Xiao did not file a

timely petition for review of that order. See 8 U.S.C. § 1252(b)(1) (providing for thirty

days within which to file a petition for review); Stone v. INS, 514 U.S. 386, 405 (1995)

(timely motion to reopen or reconsider does not toll running of filing period for review of

BIA’s underlying removal order). Xiao’s petition for review was filed on March 2, 2009,

within thirty days of the BIA’s January 30, 2009 order denying reconsideration and

reopening, but not within thirty days of the BIA’s May 2008 order dismissing the appeal.

Therefore, the petition is timely only with respect to the order denying Xiao’s motion to

reconsider and reopen.

III.

We review for abuse of discretion the denial of motions for reconsideration and

motions to reopen. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005); Filja v.

Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under this standard, we may reverse the

BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft,

290 F.3d 166, 174 (3d Cir. 2002). We will uphold the BIA’s factual determinations so

long as “they are ‘supported by reasonable, substantial, and probative evidence on the

record considered as a whole.’” Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009)

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).

The BIA denied Xiao’s motion for reconsideration on the basis that it was filed

4
after the thirty-day deadline for such a motion had expired. See 8 U.S.C. §

1229a(c)(6)(B); 8 C.F.R. § 1003.2(b)(2). Xiao does not argue that the BIA erred in this

regard; indeed she offers nothing on the issue other than to assert that untimeliness was an

“officious ground” upon which to deny her motion. In light of the undisputed evidence of

record that Xiao’s motion for reconsideration was filed after the statutory thirty-day

deadline, the BIA did not abuse its discretion when it denied Xiao’s motion as untimely.

Turning to the denial of Xiao’s motion to reopen proceedings, such a motion “shall

not be granted unless it appears to the Board that evidence sought to be offered is material

and was not available and could not have been discovered or presented at the former

hearing.” 8 C.F.R. § 1003.2(c)(1). In her motion before the BIA, Xiao offered no proof

that her evidence was previously unavailable. Because Xiao failed to prove that the

material she submitted to the BIA could not have been previously discovered, the BIA did

not abuse its discretion in denying her motion on that basis.

And, contrary to Xiao’s assertion that the BIA “ignored” her evidence, the BIA

also considered her “new” evidence and determined that it, combined with the evidence

of record, was insufficient to establish her eligibility for asylum or CAT protection. The

BIA may deny a motion to reopen immigration proceedings where the movant has failed

to establish a prima facie case for the relief sought. See INS v. Doherty, 502 U.S. 314,

323 (1992). Here, Xiao submitted undated photographs of her joining a Falun Gong

demonstration in New York and an article from the internet recounting Falun Gong

5
activities in 2007. This evidence does not bear on, let alone establish, whether Xiao was

persecuted in China for practicing Falun Gong. Nor has Xiao shown how the anecdotal

account of Falun Gong activity in 2007 affects her likelihood of future persecution. See

Shardar v. Att’y Gen., 503 F.3d 308, 316 (3d Cir. 2007) (an asylum applicant must make

a showing of a particularized threat of persecution). For these reasons, the BIA did not

abuse its discretion in denying Xiao’s motion on the additional basis that she did not

establish a prima facie case for the relief sought.

Accordingly, we will deny the petition for review.