No. 07-4883-ag NAC.United States Court of Appeals, Second Circuit.
July 30, 2008.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals (“BIA”), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
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FOR PETITIONER: Vlad Kuzmin, New York, New York.
FOR RESPONDENT: Jeffrey S. Bucholtz, Acting AssistantAttorney General, Mary Jane Candaux, Assistant Director, EdwardE. Wiggers, Attorney, Office of Immigration Litigation, U.S.Department of Justice, Washington, D.C.
PRESENT: HON. JOSÉ A. CABRANES, HON. ROBERT D.SACK, HON. ROBERT A. KAZTMANN, Circuit Judges.
Petitioner Rong Mei Weng, a native and citizen of the People’s Republic of China, seeks review of an October 5, 2007 order of the BIA denying her motion to reopen. In re Rong Mei Weng, No. A79 415 339 (B.I.A. Oct. 5, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
I. Motion to Reopen
We review the BIA’s denial of a motion to reopen for abuse of discretion. See 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
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conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted). In reviewing the BIA’s denial of a motion to reopen, we remain mindful of the Supreme Court’s admonition that motions to reopen are “disfavored.” See INS v. Doherty, 502 U.S. 314, 323 (1992).
We find that the BIA did not abuse its discretion in denying Weng’s motion to reopen. See 8 C.F.R. § 1003.2(c)(2). It is beyond dispute that Weng’s March 2007 motion to reopen was untimely; indeed, it was filed more than three years after the BIA’s prior decision. The BIA also properly found that Weng did not meet an exception to the time limitation applicable to such motions because she failed to show changed country conditions in China that are material to her claim. See 8 C.F.R. § 1003.2(c)(3)(ii). It is well-settled that the birth of children in this country is not a changed country condition sufficient to merit reopening See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005). Moreover, the BIA did not act arbitrarily in declining to reopen Weng’s proceedings based on her submission of China’s Law on Population and
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Family Planning or the “propaganda” from the Family Planning Office of Ting Jiang Town based on its finding that these documents are “pertinent to the conditions in China prior to the 2002 hearing” before the IJ. See 8 C.F.R. § 1003.23(b)(4)(i); see also Poradisova v. Gonzales, 420 F. 3d 70, 78 (2d Cir. 2005).
Additionally, the BIA did not abuse its discretion in discounting the uncorroborated, anecdotal letters from her father and cousin and crediting the 2006 U.S. Department of State country report for China, finding that “children born abroad are `not . . . counted’ for birth planning purposes when the parents return to China.” See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (citing Wei Guang Wang v. BIA, 437 F.3d 270, 274-76 (2d Cir. 2006)). With regard to Weng’s argument that the State Department’s 2006 report contradicts its 2004 report, the BIA does not abuse its discretion in crediting the most recent State Department report over an older report.
Weng also argues that BIA erred in failing to explicitly acknowledge and discuss the December 2004 Congressional testimony of T. Kumar and Arthur E. Dewey. However, absent compelling evidence to the contrary, we
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“presume that [the agency] has taken into account all of the evidence before [it].” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir. 2006). Nothing in the record here compels us to conclude that the BIA failed to consider the evidence Weng submitted. Cf. Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87-88 (2d Cir. 2007); Shou Yung Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006). Accordingly, the BIA’s denial of her motion to reopen was not in error.
II. Motion to File a Successive Asylum Application
Nor is remand appropriate on the basis of Weng’s “successive asylum application.” Even assuming arguendo that Weng may file a successive asylum application, [2] and that the requirements of 8 U.S.C. § 1229a(c)(7)(C) would not govern that application, it would be futile to remand her case to the agency because, as the BIA found, she failed to establis prima facie eligibility for relief. Thus, it is plain that her successive asylum application would fail, rendering remand an “idle and useless formality.” See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969).
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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(b).
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