Shou Mou Chen v. Mukasey
Shou Mou Chen v. Mukasey
Opinion of the Court
SUMMARY ORDER
Shou Mou Chen and Qing Lin, both natives and citizens of the People’s Republic of China, seek review of a November 27, 2007 order of the BIA denying them
We review the 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 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). In reviewing the BIA’s denial of a motion to reopen, we remain mindful of the Supreme Court’s admonition that motions to reopen are “disfavored.” See Ma-ghradze v. Gonzales, 462 F.3d 150, 154 (2d Cir. 2006).
An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA did not abuse its discretion in denying Petitioners’ motion to reopen as untimely where it was filed more than three years after the BIA’s April 2002 decision dismissing their appeal from the I J’s denial of relief. See 8 C.F.R. § 1003.2(c)(2). Moreover, we conclude that the BIA did not abuse its discretion in finding that Petitioners failed to establish materially “changed circumstances arising in the country of nationality.”
Finally, Petitioners’ reference to the evidence discussed in Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), is unavailing where they did not submit that evidence with their motion to reopen. See 8 U.S.C. § 1252(b)(4)(A). As we have held, remand for agency consideration of documents not in the record is inappropriate where “agency regulations set forth procedures to reopen a case before the BIA for the taking of additional evidence.” See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007).
. That finding is dispositive of Chen and Lin's motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii). Therefore, we need not reach their challenge to the BIA’s discretionary denial of their motion to reopen as to Chen based on the fugitive disentitlement doctrine. Cf. Qian Gao v. Gonzales, 481 F.3d 173, 176 (2d Cir. 2007), certiorari denied by Qian Gao v. Mukasey,-U.S.-, 128 S.Ct. 959, 169 L.Ed.2d 724 (2008).
Reference
- Full Case Name
- SHOU MOU CHEN, Qing Lin v. Michael B. MUKASEY
- Status
- Published