Opinion
No. 08-2930-ag.
October 27, 2010.
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.
Robert J. Adinolfi, Louis Adinolfi, LLC, New York, NY, for Petitioner.
Gregory G. Katsas, Assistant Attorney General; Ernesto H. Molina, Jr., Assistant Director; Joanna L. Watson, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: DENNIS JACOBS, Chief Judge, JON 0. NEWMAN and PIERRE N. LEVAL, Circuit Judges.
SUMMARY ORDER
Fang Mei Li, a native and citizen of China, seeks review of a May 30, 2008, BIA order denying her motion to reopen. In re Fang Mei Li No. A073 508 034 (B.I.A. May 30, 2008). Li's motion to reopen was based on her claim that she fears involuntary insertion of an intrauterine device ("IUD") on account of the birth of her U.S. citizen child. For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA's conclusion that Li did not demonstrate a change in country conditions sufficient to excuse the untimely filing of her motion to reopen. See id. at 168-72. Nor did the BIA err in finding that Li failed to demonstrate her prima facie eligibility for relief because although the evidence she submitted reflected that sterilization and the use of an IUD are mandatory for certain individuals, it did not indicate that those who fail to comply are forcibly sterilized or inserted with an IUD. See id. at 172. Subsequent to the BIA's decision in this case, we found permissible the BIA's conclusion that an involuntary IUD insertion is not a per se ground for asylum. See Xia Fan Huang v. Holder, 591 F.3d 124, 129-30 (2d Cir. 2010).
Finally, contrary to Li's contention, the BIA did not err in concluding that she failed to provide a valid basis for equitably tolling the time limitation applicable to her motion to reopen because she did not assert that extraordinary circumstances prevented her from timely filing her motion. See Iavorski v. U.S. INS, 232 F.3d 124, 129 (2d Cir. 2000) ("Equitable tolling applies as a matter of fairness where a [party] has been prevented in some extraordinary way from exercising his rights.") (internal quotation marks and citation omitted).
For the foregoing reasons, this petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and 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).