Opinion
No. 08-3177-ag NAC.
March 5, 2009.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals ("BIA") decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Oleh R. Tustaniwsky, New York, New York. FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; Blair T. O'Connor, Assistant Director; Juria L. Jones, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.
PRESENT: HON. JOSÉ A. CABRANES, HON. REENA RAGGI, HON. PETER W. HALL, Circuit Judges.
Petitioner Zuxiao Yang, a native and citizen of the People's Republic of China, seeks review of the May 30, 2008 order of the BIA, affirming the July 3, 2007 decision of Immigration Judge ("IJ") Javier Balasquide, which denied his motion to reopen. In re Xuxiao Yang, No. A73 582 248 (B.I.A. May 30, 2008), aff'g No. A73 582 248 (Immig. Ct. N.Y. City July 3, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the case.
When the BIA does not expressly "adopt" the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, we may consider both the IJ's and the BIA's opinions for the sake of completeness. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006). We review the agency's denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court's admonition that such motions are "disfavored." Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23 (1992)).
We find that the agency did not abuse its discretion in denying Yang's motion to reopen as untimely. An alien seeking to reopen proceedings must file his motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. §§ 1003.2(c)(2), 1003.23(b)(1). There is no time limit, however, for filing a motion to reopen "based on changed country conditions arising in the country of nationality or in the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding." See 8 C.F.R. § 1003.23(b)(4)(i). Here, the agency properly found that Yang's motion did not qualify for such an exception. Indeed, it is well-settled that the birth of U.S. citizen children is not evidence of changed conditions in China. See Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (finding that the birth of U.S. citizen children constitutes a change in personal circumstances, not a change in country conditions, and therefore does not establish an exception to the filing deadline for motions to reopen).
The agency also reasonably concluded that Yang failed to allege that changed country conditions excused the untimeliness of his motion to reopen. Moreover, the agency did not abuse its discretion by declining to consider the country conditions evidence discussed in Shou Yung Guo, 463 F.3d 109 (2d Cir. 2006), where that evidence was not in the record of this case. See Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001). Nor will we remand for consideration of that evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 261-62 (2d Cir. 2007).
Additionally, as Yang is under a final order of deportation and did not file a timely motion to reopen or demonstrate changed country conditions excusing the untimeliness of his motion, the BIA did not err in concluding that he was not eligible to file a successive asylum application based on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir. 2008).
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).