Opinion
No. 07-5167-ag.
July 29, 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.
Siuling Pun, New York, NY, for Petitioner.
Gregory G. Katsas, Acting Assistant Attorney General; Barry J. Pettinato, Assistant Director; Robbin K. Blaya, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: Hon. DENNIS JACOBS, Chief Judge, Hon. B.D. PARKER, and Hon. DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Petitioner Ying Pan, a native and citizen of China, seeks review of the October 22, 2007 order of the BIA denying her motion to reopen. In re Ying Pan, No. A96 263 105 (B.I.A. Oct. 22, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
In reviewing the BIA's denial of a motion to reopen, we have remained mindful of the Supreme Court's admonition that motions to reopen are "disfavored." See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) ("Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.") (internal citation omitted). 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 [BIA] 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 Pan's motion to reopen as untimely. As the BIA noted, its prior decision was issued in June 2005, but Pan did not file her motion until May 2007, well beyond the 90-day deadline. See 8 C.F.R. § 1003.2(c)(2). Moreover, the BIA properly found that Pan's motion did not qualify for an exception to the time limitation. See id. § 1003.2(c)(3). 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) (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 filing deadline for motions to reopen); see also Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) ("[I]t would be ironic, indeed, if petitioners . . . who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities. This apparent gaming of the system in an effort to avoid deportation is not tolerated by the existing regulatory scheme.").
Furthermore, despite Pan's submission of country conditions reports, the BIA did not abuse its discretion in concluding that she failed to provide sufficient evidence to support her allegation that conditions in China have materially changed. We have previously reviewed the BIA's consideration of similar evidence in the context of an untimely motion to reopen and have found no abuse of discretion in its conclusion that such evidence was insufficient to establish changed conditions in China. See, e.g., id. at 275 (noting that while the BIA must consider "oft-cited" evidence that it "is asked to consider time and again[,] . . . it may do so in summary fashion without a reviewing court presuming that it has abused its discretion"). Moreover, contrary to Pan's argument, the BIA did not ignore or misconstrue evidence in the record of changed country conditions in China. Cf. Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006).
For the foregoing reasons, the petition for review is DENIED. Petitioner's motion to hold this case in abeyance is also 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).