Opinion
No. 08-4658-ag NAC.
September 18, 2009.
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: Theodore N. Cox, New York, New York. FOR RESPONDENT: Tony West, Assistant Attorney General; Terri J. Scadron, Assistant Director; Anthony W. Norwood, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT: ROGER J. MINER, REENA RAGGI, DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Guo Min Huang, a native and citizen of the People's Republic of China, seeks review of an August 27, 2008 order of the BIA denying his motion to reopen. In re Guo Min Huang, No. A077 293 147 (B.I.A. Aug. 27, 2008). We assume the parties' familiarity with the underlying facts and procedural history in this case.
There is no dispute that Huang's second motion to reopen was untimely where it was filed more than six years after the BIA entered a final order of removal in his proceedings. See 8 C.F.R. § 1003.2(c)(2). As the government argues, Huang failed to exhaust before the BIA his argument that a corrected translation of the 2001 Fujian Province Population and Family Planning Law ("2001 Law") constituted evidence of material changed country conditions excusing the time limitation for filing his motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii) (providing that there is no time limit for filing a motion to reopen if it is "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"). Rather, before the BIA, Huang argued that the correct translations demonstrated his prima facie eligibility for relief. Accordingly, we decline to consider Huang's unexhausted argument that he demonstrated changed country conditions excusing the time limitation for filing his motion to reopen. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). Thus, we conclude that the BIA did not abuse its discretion in denying Huang's motion to reopen as untimely. See 8 C.F.R. § 1003.2(c)(2).
We also find that the BIA did not violate Huang's due process rights. Huang has no due process right in seeking a discretionary grant of a motion to reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 156-57 (2d Cir. 2008) (holding that "an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum"); see also Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir. 2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008). Huang has remained in this country illegally for over nine years. In that time he has filed, and had adjudicated, an asylum application and two motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, petitioner's pending motion for a stay of removal in this petition is DISMISSED as moot.