Shuang Shi Qu v. Holder

U.S. Court of Appeals for the Second Circuit
Shuang Shi Qu v. Holder, 395 F. App'x 774 (2d Cir. 2010)

Shuang Shi Qu v. Holder

Opinion

SUMMARY ORDER

Each of these petitions challenges a decision of an immigration judge (“IJ”) or the BIA denying a motion to reopen based on either the movant’s failure to demonstrate changed country conditions sufficient to avoid the applicable time and numerical limits or the movant’s failure to demonstrate prima facie eligibility for the underlying relief sought. See 8 C.F.R. §§ 1003.2(c), 1003.23(b). We review the denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

Petitioners, all natives and citizens of China, filed motions to reopen based on their claim that they fear persecution because they have one or more children in violation of China’s population control program. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-72 (2d Cir. 2008), we conclude there was no error in the BIA’s decisions. Although the petitioners in Jian Hui Shao were from Fuji-an Province, as are most of the petitioners here, two petitioners are from Zhejiang Province. 2 Regardless, as with the evidence discussed in Jian Hui Shao, the evidence they have submitted related to Zhejiang Province either does not discuss forced sterilizations or references isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See id. at 160-61,171-72.

To the extent that seven of the petitioners 3 argue that they were eligible to file successive asylum applications based solely on their changed personal circumstances, their arguments are foreclosed by our decision in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir. 2008).

We decline any request by petitioners 4 to consider evidence that was not included in the administrative record and we will not remand for the agency to consider such evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). To the extent that the BIA declined to credit petitioners’ 5 unauthenticated evidence in light of an underlying adverse credibility determination, the BIA did not abuse its discretion. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007).

*778 Two of the petitioners argue that the BIA applied an incorrect burden of proof by requiring them to establish more than their prima facie eligibility for relief. However, in one of those cases, 6 the BIA explicitly considered the petitioner’s prima facie eligibility for relief and, in the other case, 7 the BIA reasonably found that the petitioner failed to demonstrate changed country conditions excusing the untimely filing of her motion to reopen. See 8 C.F.R. § 1003.2(c); see also INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

Some of the petitioners 8 argue that the BIA erred by failing to reopen their proceedings to permit them to adjust status; however, we lack jurisdiction to review such determinations. Because petitioners’ motions were unquestionably untimely, and eligibility to adjust status is not a statutory basis for excusing the untimely filing of a motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(ii), those petitioners were necessarily invoking the BIA’s authority to reopen proceedings sua sponte, see 8 C.F.R. § 1003.2(a). The BIA’s determination as to whether it will exercise that authority is entirely discretionary and thus beyond the scope of our jurisdiction. See Ali, 448 F.3d at 518.

For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

2

. The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; and Su Zhen Weng v. Holder, No. 07-4914-ag.

3

. The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; Qi Duan Sun v. Holder, No. 07-4169-ag; Hui Li, Mei Xian Li v. Holder, Nos. 07-4747-ag (L), 07-4748-ag (Con); Qiao Ying Chen, ChiHsun Chen v. Holder, Nos. 07-5674-ag (L), 07-5676-ag (Con); Tai Huan Li v. Holder, No. 08-2264-ag; Ying Lin v. Holder, No. 08-5166-ag; and Yan Tang v. Holder, No. 08-5169-ag. The petitioner in Zhou Jin Ni v. Holder, No. 07-5755-ag also argues that he was eligible to file a successive asylum application; however, we decline to consider that argument because it was not exhausted before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

4

. The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag, and Liqun Chen v. Holder, No. 09-0608-ag.

5

. The petitioners in Gong An Chen v. Holder, No. 08-0346-ag; Rong Yao Yang v. U.S. Dep't of Justice, No. 08-1345-ag; and Xiu Qin Cao v. Holder, No. 09-1207-ag.

8

. The petitioners in Qi Duan Sun v. Holder, No. 07-4169-ag; Al Wha Lin v. Holder, No. 08-0663-ag; Cui Ping Lin v. Holder, No. 08-2539-ag; and Yan Tang v. Holder, No. 08-5169-ag.

6

. The petitioner in Tai Huan Li v. Holder, No. 08-2264-ag.

7

. The petitioner in Liqun Chen v. Holder, No. 09-0608-ag.

Reference

Full Case Name
SHUANG SHI QU v. HOLDER,1 A028 776 789; Zhen Lang Weng v. Holder, A072 766 089; Qi Duan Sun v. Holder, A070 897 908; Yan Ping Chen, You Chen Yang v. Holder, A077 280 957, A073 169 009; Shuifang Zheng v. Holder, A077 550 257; Hui Li, Mei Xian Li v. Holder, A072 836 724, A077 341 415; Su Zhen Weng v. Holder, A078 972 970; Chuan Jian Zhang v. Holder, A073 185 946; Qiao Ying Chen, Chi-Hsun Chen v. Holder, A077 323 004, A076 810 625; Zhou Jin Ni v. Holder, A073 051 737; Gong an Chen v. Holder, A075 842 254; Al Wha Lin v. Holder, A075 895 504; Shun Xing Lin v. Holder, A072 460 406; Rong Yao Yang v. United States Department of Justice, A078 293 002; Tai Huan Li v. Holder, A073 134 641; Cui Ping Lin v. Holder, A079 408 096; Mei Ying Ke, Tian Hua Lin v. Holder, A095 433 710, A073 166 452; Shin Lok Cheng v. Holder, A073 148 210; Ying Lin v. Holder, A073 645 603; Yan Tang v. Holder, A075 962 124; Liqun Chen v. Holder, A077 957 589; Bing Zheng v. Holder, A072 416 443; Xiu Qin Cao v. Holder, A075 980 794
Status
Unpublished