Opinion
Nos. 07-3507-ag, 07-3941-ag, 07-4169-ag, 07-4604-ag (1), 07-4605-ag (Con), 07-4699-ag, 07-4747-ag (1), 07-4748-ag (Con), 07-4914-ag, 07-4957-ag, 07-5674-ag (1), 07-5676-ag (Con), 07-5755-ag, 08-0346-ag, 08-0663-ag, 08-1233-ag, 08-1345-ag, 08-2264-ag, 08-2539-ag, 08-2997-ag (1), 08-3002-ag (Con), 08-4125-ag, 08-5166-ag, 08-5169-ag, 09-0608-ag, 09-0817-ag, 09-1207-ag.
October 8, 2010.
PRESENT: DENNIS JACOBS, Chief Judge, JON 0. NEWMAN, PIERRE N. LEVAL, Circuit Judges.
UPON DUE CONSIDERATION of these petitions for review of several Board of Immigration Appeals ("BIA") decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED.
SUMMARY ORDER
Each of these petitions challenges a decision of an immigration judge ("IJ") or the BIA denying a motion to reopen based on either the movant's failure to demonstrate changed country conditions sufficient to avoid the applicable time and numerical limits or the movant's failure to demonstrate prima facie eligibility for the underlying relief sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). We review the denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).
Petitioners, all natives and citizens of China, filed motions to reopen based on their claim that they fear persecution because they have one or more children in violation of China's population control program. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-72 (2d Cir. 2008), we conclude there was no error in the BIA's decisions. Although the petitioners in Jian Hui Shao were from Fujian Province, as are most of the petitioners here, two petitioners are from Zhejiang Province. Regardless, as with the evidence discussed in Jian Hui Shao, the evidence they have submitted related to Zhejiang Province either does not discuss forced sterilizations or references isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See id. at 160-61,171-72.
The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; and Su Zhen Weng v. Holder, No. 07-4914-ag.
To the extent that seven of the petitioners argue that they were eligible to file successive asylum applications based solely on their changed personal circumstances, their arguments are foreclosed by our decision in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008).
The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; Qi Duan Sun v. Holder, No. 07-4169-ag; Hui Li, Mei Xian Li v. Holder, Nos. 07-4747-ag (1), 07-4748-ag (Con); Qiao Ying Chen, ChiHsun Chen v. Holder, Nos. 07-5674-ag (1), 07-5676-ag (Con); Tai Huan Li v. Holder, No. 08-2264-ag; Ying Lin v. Holder, No. 08-5166-ag; and Yan Tang v. Holder, No. 08-5169-ag. The petitioner in Zhou Jin Ni v. Holder, No. 07-5755-ag also argues that he was eligible to file a successive asylum application; however, we decline to consider that argument because it was not exhausted before the BIA. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
We decline any request by petitioners to consider evidence that was not included in the administrative record and we will not remand for the agency to consider such evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). To the extent that the BIA declined to credit petitioners' unauthenticated evidence in light of an underlying adverse credibility determination, the BIA did not abuse its discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).
The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag, and Liqun Chen v. Holder, No. 09-0608-ag.
The petitioners in Gong An Chen v. Holder, No. 08-0346-ag; Rong Yao Yang v. U.S. Dep't of Justice, No. 08-1345-ag; and Xiu Qin Cao v. Holder. No. 09-1207-ag.asylum application; however, we decline to consider that argument because it was not exhausted before the BIA. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
Two of the petitioners argue that the BIA applied an incorrect burden of proof by requiring them to establish more than their prima facie eligibility for relief. However, in one of those cases, the BIA explicitly considered the petitioner's prima facie eligibility for relief and, in the other case, the BIA reasonably found that the petitioner failed to demonstrate changed country conditions excusing the untimely filing of her motion to reopen. See 8 C.F.R. § 1003.2(c); see also INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag, and Liqun Chen v. Holder, No. 09-0608-ag.
The petitioners in Gong An Chen v. Holder, No. 08-0346-ag; Rong Yao Yang v. U.S. Dep't of Justice, No. 08-1345-ag; and Xiu Qin Cao v. Holder. No. 09-1207-ag.
Some of the petitioners argue that the BIA erred by failing to reopen their proceedings to permit them to adjust status; however, we lack jurisdiction to review such determinations. Because petitioners' motions were unquestionably untimely, and eligibility to adjust status is not a statutory basis for excusing the untimely filing of a motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii), those petitioners were necessarily invoking the BIA's authority to reopen proceedings sua sponte, see 8 C.F.R. § 1003.2(a). The BIA's determination as to whether it will exercise that authority is entirely discretionary and thus beyond the scope of our jurisdiction. See Ali, 448 F.3d at 518.
The petitioners in Qi Duan Sun v. Holder, No. 07-4169-ag; Al Wha Lin v. Holder, No. 08-0663-ag; Cui Ping Lin v. Holder, No. 08-2539-ag; and Yan Tang v. Holder, No. 08-5169-ag.
For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and second circuit Local rule 34.1(b).