Ai Qing Wu v. Holder , 376 F. App'x 122 ( 2010 )

07-4706-ag
Wu v. Holder
BIA
A70 908 558
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of May, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_________________________________________
AI QING WU,
Petitioner,
v. 07-4706-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, * UNITED STATES
DEPARTMENT OF JUSTICE,
Respondents.
_________________________________________
FOR PETITIONER: Bruno Joseph Bembi, Hempstead, N.Y.
FOR RESPONDENT: Gregory G. Katsas, Assistant
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Acting Attorney General
Peter D. Keisler as a respondent in this case.
Attorney General; Ernesto H. Molina,
Jr., Assistant Director; Jamie Dowd,
Senior Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 in part and DISMISSED in part.
Petitioner Ai Qing Wu, a native and citizen of the
People’s Republic of China, seeks review of an October 12,
2007, order of the BIA denying his motion to reopen. In re
Ai Qing Wu, No. A070 908 558 (B.I.A. Oct. 12, 2007). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case.
We review a BIA decision to deny a motion to reopen
deferentially for abuse of discretion. Jian Hui Shao v.
Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). There is no
dispute that Wu’s second motion to reopen, filed in November
2006, was untimely and number-barred because the BIA issued
a final order of removal in June 2002. See 8 C.F.R. §
1003.2(c)(2). There are no time and numerical limits for
filing a motion to reopen, however, if it is “based on
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changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if
such evidence is material and was not available and could
not have been discovered or presented at the previous
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably
found that Wu did not qualify for such an exception.
Wu failed to establish changed country conditions based
on the birth of his U.S. citizen children. See Li Yong
Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
Cir. 2005); see also Wei Guang Wang v. BIA, 437 F.3d 270,
273-74 (2d Cir. 2006). Moreover, we have previously
reviewed the BIA’s analysis of evidence similar to that
which Wu submitted in this case and have found no error in
its conclusion that such evidence does not demonstrate
either material changed country conditions excusing the time
and numerical limits for filing a motion to reopen or a
reasonable possibility of forced sterilization. See Jian
Hui Shao, 546 F.3d at 158-73; see also Wei Guang Wang, 437
F.3d at 275. In addition, the BIA’s failure to consider
Wu’s argument that he was eligible to file a successive
asylum application based on his changed personal
circumstances is of no moment because remand would be
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futile, see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d
281, 289 (2d Cir. 2007). See our decision in Yuen Jin v.
Mukasey, 538 F.3d 143 (2d Cir. 2008), which required that
“an alien under a final removal order must file a successive
asylum application in conjunction with a motion to reopen
and in accordance with those procedural requirements.” Id.
at 156. Accordingly, we deny Wu’s petition for review to
this extent.
We lack jurisdiction to review the BIA’s decision
insofar as it declined to reopen Wu’s proceedings sua sponte
to allow an application for adjustment of status. Mahmood
v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because
Mahmood’s untimely motion [seeking] to reopen [based on his
eligibility to adjust status] was not excused by any
regulatory exception, his motion to reopen could only be
considered upon exercise of the Agency’s sua sponte
authority.”); See Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006); 8 C.F.R. § 1003.2(a). Moreover, Wu has not
demonstrated that the BIA “declined to exercise its sua
sponte authority because it misperceived the legal
background and thought, incorrectly, that a reopening would
necessarily fail [such that] remand to the Agency for
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reconsideration in view of the correct law is appropriate.”
Mahmood, 570 F.3d at 469. Accordingly, we dismiss Wu’s
petition for review to this extent.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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