Opinion
No. 05-5973-ag NAC.
August 22, 2007.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED. Petitioner Bi Zhen Lin, a native and citizen of China, seeks review of the October 13, 2005 order of the BIA denying her motion to reopen. In re Bi Zhen Lin, No. A79 097 647 (B.I.A. Oct. 13, 2005). We assume the parties' familiarity with the underlying facts and procedural history of the case.
FOR PETITIONER: Michael Brown, New York, N.Y. FOR RESPONDENT: Paula D. Silsby, United States Attorney, William J. Schneider, Assistant United States Attorney, Portland, Me.
PRESENT: HON. PIERRE N. LEVAL, HON. GUIDO CALABRESI, HON. JOSÉ A. CABRANES, Circuit Judges.
We review the BIA's denial of a motion to reopen for abuse of discretion. 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." Ka Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
A motion to reopen a deportation or exclusion proceeding must be filed no later than 90 days after the date on which a final administrative decision in that proceeding was rendered. 8 C.F.R. § 1003.2(c)(2). The time limit does not apply, however, to a motion to reopen that 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." 8 C.F.R. § 1003.2(c)(3)(ii). Such changes are regularly referred to as "changed country conditions" and distinguished from "changed personal circumstances." Jian Huan Guan v. BIA, 345 F.3d 47, 49 (2d Cir. 2003).
Here, the final administrative decision in Lin's removal proceeding was dated October 29, 2003, so the BIA correctly found that Lin's August 26, 2005 motion to reopen was not timely under 8 C.F.R. § 1003.2(c)(2). In addition, the BIA properly found that Lin failed to establish an exception to the filing deadline based on the birth of her U.S. citizen daughter. See, e.g., Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (per curiam) (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 90-day filing deadline); Jian Huan Guan, 345 F.3d at 49 ("Guan's evidence is essentially of changed personal circumstances in the United States based on the birth of her two sons, evidence which does not fit under the exception set forth in 8 C.F.R. § 3.2(c)(3)(ii).").
Apart from evidence of changed personal circumstances, the only other evidence Lin submitted in support of her motion to reopen was the Aird affidavit, an oft-cited discussion of China's restrictive family planning policy by a retired U.S. Census Bureau official and demographer. The BIA did not abuse its discretion in concluding that this affidavit was insufficient to support Lin's claim of changed country conditions. "While the BIA must consider" the Aird affidavit, we have held, "it may do so in summary fashion without a reviewing court presuming that it has abused its discretion." Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
Lin's motion to reopen does not cite any other documents suggesting that Lin would face forcible sterilization upon return to her home province in China. Specifically, she did not submit the materials we recently ordered the BIA, on remand, to consider in Shou Young Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir. 2006): two documents reflecting 2003 decisions of the Changle City Family-Planning Administration and the Fujian Province Department of Family-17 Planning Administration and a 1999 document titled "Q A for Changle City Family-Planning Information Handbook," which apparently indicate a policy of forced sterilization in the Fujian Province for Chinese nationals who have given birth to two or more children, including children born while living abroad (the " Guo documents").
Since Shou Young Guo, we have suggested that we may have "inherent power" to take judicial notice of the Guo documents — or rather, to "tak[e] notice . . . that another panel of our Court remanded a case to the BIA for reconsideration of previously unexamined evidence that, in the opinion of that panel, `apparently reflects governmental policy'" regarding forced sterilization in the Fujian Province — and to remand a decision to the BIA on that basis. Tian Ming Lin v. U.S. Dep't of Justice, 473 F.3d 48, 52 (2d Cir. 2007) (per curiam) (quoting Sho Young Guo, 463 F.3d at 115). We have now concluded, however, "that the exercise of such an inherent power" — to the extent it exists — "is not warranted if . . . (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." Xiao Xing Ni v. Gonzales, No. 04-0042-ag, __ F.3d __, 2007 WL 2012395, at *7 (2d Cir. July 12, 2007). Both factors precluding our exercise of our "inherent powers" are present here. Lin did not submit the Guo documents to the BIA in support of her motion, and Lin could, under the agency regulations, file another motion to reopen the proceedings before the BIA for the taking of additional evidence. See 8 C.F.R. § 1003.2(c)(3)(ii) (stating that an additional motion to reopen is not barred if it is "based on changed circumstances arising in the country of nationality or in the country which deportation has been ordered").
In sum, the existence of the Guo documents does not change our conclusion that the BIA properly denied Lin's August 2005 motion to reopen. The lack of specific evidence of "changed circumstances" in China giving rise to a threat of involuntary abortion or sterilization provided a sufficient basis for the BIA's decision that Lin did not qualify for an exception to the 90-day filing deadline under 8 C.F.R. § 1003.2(c)(3)(ii).
To the extent that the BIA declined to reopen Lin's case pursuant to its sua sponte authority, see 8 C.F.R. § 1003.2(a), we lack jurisdiction to consider such a decision because it is "entirely discretionary." Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). 22
Because she did not allege before the BIA that she was filing a successive asylum application, we decline to review Lin's argument that she has a statutory right to file an untimely, successive asylum claim pursuant to 8 U.S.C. § 1158(a)(2)(D) and that the BIA's failure to acknowledge this alleged right was a due process violation. See Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 123 (2d Cir. 2007), reh'g denied 489 F.3d 126, 127 (2d Cir. 2007) ("Consistent with the strong prudential rationale for requiring all issues raised on appeal to have been presented below, our circuit applies an issue exhaustion doctrine to petitions for review from the BIA.").
_____For the foregoing reasons, the petition for review is DENIED. Having 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(d)(1).