No. 07-5681-ag.United States Court of Appeals, Second Circuit.
August 31, 2010.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration
Page 111
Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
Yee Ling Poon, New York, NY, for Petitioners.
Gregory G. Katsas, Assistant Attorney General; Mark C. Walters, Assistant Director; W. Manning Evans, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondents.
PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN and PIERRE N. LEVAL, Circuit Judges.
SUMMARY ORDER
Petitioners Li Qin Huang and Yi Xin Chen, natives and citizens of the People’s Republic of China, seek review of a November 28, 2007 order of the BIA denying their motion to reopen In re Li Qin Huang, Yi Xin Chen, Nos. A078 733 300, A077 322 832 (B.I.A. Nov. 28, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen or reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). When the agency considers relevant evidence of country conditions in evaluating a motion to reopen, we review the agency’s factual findings under the substantial evidence standard. See Jian Hui Shoo v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not err in denying petitioners’ motion to reopen. We have previously reviewed the agency’s consideration of similar evidence and have found no error in its conclusion that such evidence is insufficient to establish a reasonable possibility of forced sterilization. See id.
at 169-72; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006).
In addition, contrary to petitioners’ argument, the BIA did not err on remand in construing their motion as a motion to reopen as opposed to a motion to reconsider because the Court directed the BIA to consider new evidence on remand and not to reconsider its earlier decision based on the existing record See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90-91 (2d Cir. 2001). Furthermore, in its initial consideration of petitioners’ motion, the BIA clearly construed their motion as seeking reconsideration in part and reasonably found that petitioners’ conclusory assertion of error failed to specify any errors of fact or law in its prior decision See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao, 265 F.3d at 90.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. 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 34.1(b).
Page 112