United States Court of Appeals, Second CircuitNov 3, 2008
No. 07-4167-ag NAC (2d Cir. Nov. 3, 2008)

No. 07-4167-ag NAC.

November 3, 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.

FOR PETITIONER: David J. Rodkin, New York, New York. FOR RESPONDENT: Jeffrey S. Bucholtz, Acting Assistant Attorney General, Mary Jane Candaux, Assistant Director, Jaesa Woods McLin, Trial Attorney, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, District of Columbia.


Petitioner Jin Li You, a native and citizen of the People's Republic of China, seeks review of the September 14, 2007 order of the BIA denying his motion to reconsider. In re Jin Li You, No. A73 767 224 (B.I.A. Sept. 14, 2007). We assume the parties' familiarity with the underlying facts and procedural history of the 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). "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." Ke Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations omitted).

We find that the BIA did not abuse its discretion in denying You's motion to reconsider the BIA's January 2007 order denying his motion to reopen as numerically barred. As the BIA noted, while only one motion to reopen is allowed under the regulations, see 8 C.F.R. § 1003.2(c)(2), You's September 2006 motion to reopen was his second.

Moreover, we find no abuse of discretion in the BIA's finding that You's relative's appointment to a village committee did not warrant an exception to the numerical limitations under 8 C.F.R. § 1003.2(c)(3)(ii). The exception to the number bar (and the 90-day deadline) is relevant only when a party seeks "[t]o apply or reapply for asylum . . . based on changed circumstances arising in the country of nationality." 8 C.F.R. § 1003.2(c)(3)(ii). In You's case, the BIA properly observed that he did not seek to apply for asylum in the first instance or reapply on a new basis, but wished to supplement his prior claim for relief with an alleged sterilization certificate. Although such supplemental evidence may have been a proper basis for a timely motion to reopen that was not numerically barred, see 8 C.F.R. § 1003.2(c)(1), we find no abuse of discretion in the BIA's rejection of it as a basis for You's second motion to reopen, filed four years after the BIA denied his appeal on the merits. See Kaur, 413 F.3d at 233-34.

In addition, regarding the alleged prior unavailability of the evidence underlying You's motion, see 8 C.F.R. § 1003.2(c)(1), the BIA properly noted that he offered no explanation as to why the sterilization certificate could not have been obtained earlier (and did not indicate that he made any prior, unsuccessful attempts to obtain it), nor any evidence that such documents may only be obtained through the influence of a village committee member. Moreover, the BIA properly found that the mere existence of the certificate did not establish that You's sterilization had been "forced" such that would entitle him to refugee status under 8 U.S.C. § 1101(a)(42).

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).