Opinion
No. 07-3810-ag NAC.
October 31, 2008.
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.
FOR PETITIONER: Robert J. Adinolfi, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; M. Jocelyn Lopez Wright, Assistant Director; Brianne Whelan Cohen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT: HON. JON O. NEWMAN, HON. ROGER J. MINER, HON. SONIA SOTOMAYOR, Circuit Judges.
Petitioner Ri Feng Lin, a native and citizen of the People's Republic of China, seeks review of the August 13, 2007 order of the BIA denying his motion to reopen. In re Ri Feng Lin, No. A75 776 709 (B.I.A. Aug. 13, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). "An abuse of discretion may be found . . . where the [BIA's] decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
We find that the BIA did not abuse its discretion in denying Lin's motion to reopen as untimely. An alien seeking to reopen proceedings must file his motion to reopen no later than ninety days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no time limit, however, for filing a motion to reopen "based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA properly found that Lin's motion did not qualify for such an exception. Indeed, it is well-settled that the birth of U.S. citizen children is not evidence of changed conditions in China. See Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130, 31 (2d Cir. 2005) (finding that the birth of U.S. citizen children constitutes a change in personal circumstances, not a change in country conditions, and therefore does not establish an exception to the filing deadline for motions to reopen).
Furthermore, the BIA accurately found that Lin failed to submit any evidence demonstrating material changed country conditions in China. See 8 C.F.R. § 1003.2(c)(3)(ii). Contrary to Lin's assertion, the BIA's decision does not suggest, much less "compellingly" so, that it failed to consider the evidence in the record. See Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006) (noting that the Court "presume[s] that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise") (emphasis added).
Lin's reliance on an unpublished summary order remanding for the BIA to consider three World Journal articles is misplaced. In that case, the BIA's statement that "[t]he only evidence" of changed conditions in the record was the petitioner's mother's affidavit compelled us to conclude that it had not considered the entire record. We have no such concern in this case.
Likewise, the BIA did not abuse its discretion by declining to consider the documentary evidence of changed country conditions at issue in Zhi Yun Gao v. Mukasey, 508 F.3d 86 (2d Cir. 2007), where that evidence was not in the record. See Ke Zhen Zhao, 265 F.3d at 93. Moreover, we will not remand for consideration of that evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007) (holding that this Court will not exercise its inherent power to remand to the BIA for the consideration of additional evidence where "[i] the basis for the remand is an instruction to consider documentary evidence that was not in the record before the BIA; and [ii] the agency regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence"). Accordingly, because the BIA did not err in finding that Lin failed to demonstrate material changed country conditions in China, it did not abuse its discretion in denying his motion to reopen as untimely.
Lin's failure to demonstrate material changed country conditions excusing the untimeliness of his motion was alone a proper basis to deny his motion. See INS v. Abudu, 485 U.S. 94, 104, 05 (1988). Thus, we need not reach his argument that the BIA erred in finding that he did not establish prima facie eligibility for relief. Nonetheless, the BIA did not abuse its discretion in finding speculative Lin's claimed fear of persecution on account of the birth of his one U.S. citizen child and his permanent resident wife's pregnancy where he failed to submit evidence demonstrating that he was in violation of the family planning policy. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that "[i]n the absence of solid support in the record for [an applicant's] assertion that he will be [persecuted], his fear is speculative at best"); see also Ke Zhen Zhao, 265 F.3d at 93.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.