Opinion
No. 08-2915-ag.
December 28, 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.
Nan Shen, New York, NY, for Petitioner.
Gregory G. Katsas, Assistant Attorney General; Blair T. O'Connor, Assistant Director; Edward Durant, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: JON O. NEWMAN, RALPH K. WINTER, and REENA RAGGI, Circuit Judges.
SUMMARY ORDER
Petitioner Kong Song Wang, a native and citizen of the People's Republic of China, seeks review of the May 14, 2008 order of the BIA denying his motion to reopen, In re Kong Song Wang, No. A77 653 387 (BIA May 14, 2008). We assume the parties' familiarity with the underlying facts and procedural history in this 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). An alien seeking to reopen removal proceedings must file a motion to reopen no later than 90 days after the final administrative decision is rendered in his case. See 8 C.F.R. § 1003.2(c)(2). However, 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." Id. § 1003.2(c)(3)(ii).
There is no question that Wang's January 14, 2008 motion to reopen, filed more than five years after the BIA's final order of November 12, 2002, was out of time. Nor do we detect abuse of discretion in the BIA's conclusion that Wang failed to present material and previously unavailable evidence of changed country conditions, as required to excuse his untimeliness. Rather, he asserted entitlement to relief based on (1) the fact that his wife had given birth to a U.S. citizen child and was pregnant again; and (2) his decision, since arriving in the United States, to take up the practice of Falun Gong. These facts evidencing changed personal circumstances do not warrant the relief Wang seeks. See Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). We likewise identify no abuse of discretion in the BIA's reliance on a previous adverse credibility finding in declining to credit either (1) Wang's two letters purportedly demonstrating changed circumstances or (2) his professed devotion to Falun Gong. See In re S-Y-G-, 24 I. N. Dec. 247, 250 (BIA 2007).
We conclude that the BIA did not abuse its discretion in denying Wang's untimely motion to reopen. See Kaur, 413 F.3d at 233; 8 C.F.R. § 1003.2(c)(2). Thus, the 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(b).