Li Qin Zhu v. U.S. Department of Justice
Li Qin Zhu v. U.S. Department of Justice
Opinion of the Court
SUMMARY ORDER
Li Qin Zhu, pro se, a native and citizen of the People’s Republic of China, seeks review of an October 19, 2004 order of the BIA denying her motion to reopen her removal proceedings. In re Li Qin Zhu, No. A78 216 471 (B.I.A. Oct. 19, 2004). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA denies a motion to reopen or reconsider, we review the BIA’s decision for an abuse of discretion. See Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). 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.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).
As an initial matter, because Zhu did not specify any errors of law or fact in the BIA’s previous decision denying her first motion as required by 8 C.F.R. § 1003.2(b), the BIA did not abuse its discretion when it denied her motion to reconsider, to the extent that the BIA construed it as such.
An asylum applicant may file only one motion to reopen her case, and she must do so within 90 days after the date on which a final administrative decision was rendered in the proceeding sought to be reopened. 8 C.F.R. § 1003.2(c)(2). However, these time and numerical limitations do not apply 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)(h). While Zhu filed her motion to reopen alleging changed country conditions in China, she claims a well-founded fear of persecution based on the birth 1 of her two U.S. citizen children.
The BIA denied Zhu’s motion to reopen, finding that it was “barred by numerical limitations.” In denying Zhu’s motion, the BIA failed to consider the
For the foregoing reasons, the petition for review is GRANTED. The BIA’s decision is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with his order. Petitioner’s motion for stay of removal is GRANTED. 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).
Reference
- Full Case Name
- LI QIN ZHU v. U.S. DEPARTMENT OF JUSTICE, Attorney General & Immigration
- Status
- Published