ZENG v. HOLDER, 391 Fed.Appx. 112 (2nd Cir. 2010)

WEI DONG ZENG v. HOLDER,[1] A073 534 508. Shi Jin Lin v. Holder, A077 297 492. Yue Hua Lin v. Holder, A078 199 003. Yunqiang Wu v. Holder, A072 461 181 Shixiong Liu v. Holder, A073 620 810.

Nos. 08-0406-ag, 08-1249-ag, 08-1599-ag, 08-2819-ag, 08-3987-ag.United States Court of Appeals, Second Circuit.
August 31, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

[1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted as respondent in these cases.

UPON DUE CONSIDERATION of these petitions for review of Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that these petitions for review are DENIED.

Charles Christophe, Esq., Christophe Associates P.C., New York, NY, for Petitioner.

Michelle Gordon Latour, Esq., U.S. Department of Justice, Washington, DC, for Respondent.

PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, and PIERRE N. LEVAL, Circuit Judges.

Page 113

SUMMARY ORDER
Each of these petitions challenges a decision of the BIA denying a motion to reopen, or affirming an Immigration Judge’s (“I J”) denial of a motion to reopen, based on either the movant’s failure to demonstrate changed country conditions sufficient to avoid the time and numerical limits applicable to such motions or the movant’s failure to demonstrate prima facie eligibility for the underlying relief sought See 8 C.F.R. § 1003.2(c). The applicable standard of review is well-established. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

The motions to reopen at issue in these petitions were each based primarily on the birth of one or more children to the Chinese citizen petitioners.[2] For largely the same reasons this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), we find no error in the BIA’s decisions.[3] See id. at 168-72. We lack jurisdiction to review the BIA’s decisions insofar as it declined to reopen proceedings sua sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

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] Insofar as the petitioner in Wei Dong Zeng v. Holder, 08-0406-ag, argues that the new evidence he submitted in support of his motion demonstrated his eligibility for relief based on his claim that family planning officials attempted to forcibly sterilize him in 1990, we find that the BIA did not abuse its discretion in finding that he could have presented that claim in his original asylum application and at his October 1996 hearing before the I J. See 8 C.F.R. § 1003.2(c)(1); see also INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).

[3] In Shi Jin Lin v. Holder, 08-1249-ag, the BIA also did not err in declining to reopen the petitioner’s proceedings to permit her to relitigate the merits of her initial application for relief. See 8 C.F.R. § 1003.2(c)(1). Furthermore, we lack jurisdiction to consider the petitioner’s unexhausted argument that the ineffective assistance of her former counsel should have equitably tolled the time period for the filing of her motion to reopen. See Kara] v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).