Ming Jian Huang v. Mukasey
Ming Jian Huang v. Mukasey
Opinion of the Court
SUMMARY ORDER
Petitioners Ming Jian Huang and Jin Yong Chen, natives and citizens of China, seek review of the November 29, 2007 orders of the BIA denying their motions to reopen. In re Ming Jian Huang, No. A72 831 014 (B.I.A. Nov. 29, 2007); In re Jin Yong Chen, No. A96 260 141 (B.I.A. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of these cases.
As an initial matter, we note that Huang and Chen waive any challenge to the BIA’s decision insofar as it found that they failed to establish prima facie eligibility for CAT relief on account of their illegal departures from China. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005). However, contrary to the government’s argument, we find that Huang and Chen sufficiently exhausted before the BIA the issue of eligibility for CAT relief on account of a likelihood of forcible sterilization.
We find that the BIA did not abuse its discretion in denying Huang’s motion to reopen as number-barred. Because Huang filed his first motion to reopen in March 2002, there is no dispute that his second motion to reopen filed in January 2005 was number-barred. See 8 C.F.R. § 1003.2(c)(2). However, there is no numerical limit for filing a motion to reopen “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)(ii). Here, however, the BIA properly found that Huang’s motion did not qualify for such an exception. Indeed, 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) (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). Furthermore, the BIA correctly found that the country condition evidence that Huang submitted was not new or previously unavailable as required by 8 C.F.R. § 1003.2(c)(3)(ii), where all of said evidence pre-dated his August 2003 merits hearing. Thus, because the BIA did not err in finding that Huang failed to demonstrate changed country conditions in China, it did not abuse its discretion in denying his motion to reopen as number-barred. See 8 C.F.R. § 1003.2(c)(2).
As for Chen’s motion to reopen, we find that the BIA did not abuse its discretion in concluding that she failed to demonstrate prima facie eligibility for asylum, withholding of removal, and CAT relief.
Finally, we need not examine the argument that Huang and Chen are eligible to file successive asylum applications because, even assuming arguendo that they are eligible to file such applications, Chen failed to establish prima facie eligibility for relief and Huang did not file an independent successive asylum application before the BIA. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338-39 (2d Cir. 2006) (discussing the futility of remand where the Court can confidently predict the agency’s decision would not change on remand).
For the foregoing reasons, the petitions for review are DENIED. The pending motion for a stay of removal in these petitions is DISMISSED as moot.
. Where, as here, an applicant’s claims for asylum, withholding of removal, and CAT relief are all based upon the same factual predicate, the withholding of removal and CAT claims necessarily fail if the applicant is unable to show the objective likelihood of persecution needed to demonstrate a well-founded fear of persecution. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
Reference
- Full Case Name
- MING JIAN HUANG a.k.a. Wang Lin Wei, Jin Yong Chen v. Michael B. MUKASEY, United States Attorney General
- Status
- Published