No. 06-1510-ag.United States Court of Appeals, Second Circuit.
October 31, 2008.
UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
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FOR PETITIONER: Michael Brown, New York, New York.
FOR RESPONDENT: Christopher J. Christie, United States Attorney for the District of New Jersey, Stuart A. Minkowitz, Assistant United States Attorney, Newark, New Jersey.
PRESENT: CHESTER J. STRAUB, ROSEMARY S. POOLER, BARRINGTON D. PARKER Circuit Judges.
Gui Xiu Wang, a native and citizen of the People’s Republic of China (“China”), seeks review of a March 8, 2006, order of the Board of Immigration Appeals (“BIA”) denying petitioner’s third motion to reopen.In re Gui Xiu Wang, No. A72 830 329 (B.I.A. Mar. 8, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion 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.” Kaur, 413 F.3d at 233-34 (quoting Ke Zhen Zhao v.U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted)).
In his motion to reopen, Wang argued that, although it was untimely and successive, he had the “right to file a successive asylum application” pursuant to 8 U.S.C. § 1158(a)(2)(D) based on his changed personal circumstances — namely, “his alleged eligibility for adjustment of status,” and his well-founded fear of persecution due to the birth of his second child. Because Wang does not raise his adjustment of status claim in his brief to this Court, that claim is waived. See Yueqing Zhang v.Gonzales, 426 F.3d 540, 542 n. 1, 546 n. 7 (2d Cir. 2005). We reject Wang’s remaining argument because (1) in order to file a successive application for asylum after the completion of removal proceedings, an alien must also file a motion to reopen; and (2) if the motion to reopen is made more than ninety days after the order of removal, it must demonstrate changed country circumstances. Yuen Jin v. Mukasey, 538 F.3d 143, 151-52 (2d Cir. 2008). Because Wang did not show changed country circumstances, the BIA did not abuse its discretion by denying his third and very untimely motion to reopen. Moreover, these limitations did not deny Wang due process. See id. at 157.
For the foregoing reasons, the petition for review is DENIED. We also deny Wang’s motion to remand for consideration of new evidence. See XiaoXing Ni v. Gonzales, 494 F.3d 260, 265-66 (2d Cir. 2007). Finally, Wang’s motion for a stay of removal is denied as moot.
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