Opinion
No. 04-2957-ag.
October 9, 2007.
Petition for review of a final decision of the Board of Immigration Appeals.
UPON DUE CONSIDERATION, it is ORDERED, ADJUDGED, AND DECREED that the petition for review is hereby DENIED.
APPEARING FOR PETITIONER: SHEEMA CHAUDHURY (Michael Brown, on the brief), New York, New York.
APPEARING FOR RESPONDENT: CARL J. NICHOLS, Assistant United States Attorney (Marcia W. Johnson, Assistant United States Attorney, on the brief), for Gregory A. White, United States Attorney for the Northern District of Ohio, Cleveland, Ohio.
PRESENT: HON. DENNIS JACOBS, Chief Judge , HON. PIERRE N. LEVAL, HON. SONIA SOTOMAYOR, Circuit Judges.
Ru Lai Zhang, a native and citizen of the People's Republic of China, petitions for review of the May 11, 2004 decision of the Board of Immigration Appeals ("BIA"), denying his motion to reconsider or reopen the proceedings. The BIA had previously issued a decision on February 9, 2004, affirming the decision of an immigration judge ("IJ") denying Zhang's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We assume familiarity with the facts, the procedural history, and the issues on appeal.
Our jurisdiction on this appeal is solely to review the BIA's denial of the motion to reconsider or reopen, which is reviewed for abuse of discretion. Wei Guang Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006).
Zhang argues the BIA abused its discretion by declining to revisit the IJ's adverse credibility determination. The IJ discredited Zhang's contention that before he left China he had married his girlfriend and gotten her pregnant. Accordingly, the IJ found that Zhang failed to produce sufficient, credible evidence of past persecution or a well-founded fear of future persecution. The BIA affirmed this decision and then declined to grant leave to reconsider or reopen. "The BIA does not abuse its discretion by denying a motion to reconsider where the motion repeats arguments that the BIA previously rejected."See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006) (per curiam). Similarly, the BIA did not abuse its discretion by declining to reopen the hearing record when Zhang offered no new evidence relevant to the IJ's specific credibility findings. The primary new evidence offered on the motion to reconsider or reopen was Zhang's marriage to a woman he met in the United States.
Zhang argues that the BIA was arbitrary and capricious in failing to consider the IJ's denial of the withholding of removal and CAT claims. As Zhang's motion to reconsider or reopen was addressed solely to his asylum claim, he failed to exhaust his administrative remedies as to the withholding of removal and CAT claims. Accordingly, this Court lacks jurisdiction to review those claims. See 8 U.S.C. § 1252(d); Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005).
Zhang moved to reopen the removal proceeding based on: (i) his marriage to another woman in the United States; (ii) the birth of their daughter; (iii) the couple's traditional beliefs compelling them to have a large family; (iv) a 1999 family planning leaflet from Zhang's hometown in the Fujian Province; and (v) pages from a 1998 State Department document regarding China's birth control policies. The BIA did not abuse its discretion in declining to reopen the proceedings on these grounds because, on the record before it, a single U.S.-born daughter did not create eligibility for asylum. See Jian Zing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005) (per curiam). The 1998 and 1999 documents pre-date the institution of the original removal proceedings and Zhang failed to explain why either document could not have been submitted earlier, other than suggesting that his prior counsel was ill-prepared. Absent proof that the documents were newly discovered or previously unavailable, the BIA was within its discretion to reject these documents as a basis to reopen the matter. See Qin Wen Zheng v. Gonzales, ___ F.3d ___, 2007 WL 2458419, at *5 (2d Cir. August 31, 2007).
Zhang argues that changed personal circumstances presented for the first time on this appeal justify reopening the proceedings, specifically that his wife is pregnant with their second child. Zhang also asks the Court to consider additional documents not submitted to the BIA that purportedly establish changed country conditions, including the oft-cited "Aird affidavit" and a 2003 administrative decision from the Fujian Province Department of Family Planning Administration. Because our review is limited to the administrative record, none of this information is properly before the Court or provides a basis for relief. See 8 U.S.C. § 1252(b)(4)(A); Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 320 n. 1 (2d Cir. 2006); Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269-70 (2d Cir. 2007) (referring petitioner to agency procedures for reopening case before BIA for taking of additional evidence).
We have considered all of Zhang's remaining arguments and find them to be without merit. For the foregoing reasons, we dismiss the petition for review.