Zhao Lee v. Loretta E. Lynch , 621 F. App'x 491 ( 2015 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                            NOV 02 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ZHAO HSIEN LEE, AKA Zhao Xian Li,                No. 12-71094
    AKA Zhao Xien Li,
    Agency No. A070-170-176
    Petitioner,
    v.                                              MEMORANDUM*
    LORETTA E. LYNCH, Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted October 23, 2015
    Pasadena, California
    Before: KOZINSKI, IKUTA, and OWENS, Circuit Judges.
    Petitioner Zhao Hsien Lee appeals the denial of his motion to reopen in
    absentia deportation proceedings. The Board of Immigration Appeals (BIA) held
    that Lee’s motion was time- and number-barred under 8 C.F.R. § 1003.2(c)(2)
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    because he could not establish changed country conditions. We have jurisdiction
    under 8 U.S.C. § 1252.
    We are precluded from addressing Lee’s claim because the issue was finally
    decided in immigration proceedings that Lee initiated in New York for the same
    purpose, under a separate alien registration number. See Oyeniran v. Holder, 
    672 F.3d 800
    , 806 (9th Cir. 2012) (holding that collateral estoppel applies in the
    context of immigration proceedings); see also B & B Hardware, Inc. v. Hargis
    Indus., Inc., 
    135 S. Ct. 1293
    , 1302–04 (2015) (issue preclusion generally applies
    when the same issue is before a court and a federal administrative agency).
    The issue — whether Lee produced material evidence of a change in country
    conditions so as to meet the requirements for reopening immigration proceedings
    under 8 C.F.R. § 1003.2(c) — is identical in both proceedings because the BIA
    considered the same evidence in both cases. See 
    Oyeniran, 672 F.3d at 806
    .
    This issue was actually litigated and decided in the prior proceedings. See
    
    id. Further, the
    BIA’s decision became final after 30 days as a result of Lee’s
    failure to pursue an appeal of the June 20, 2012 decision to the Second Circuit. See
    8 U.S.C. § 1252(b)(1); see also Wehrli v. Cty. of Orange, 
    175 F.3d 692
    , 694 (9th
    Cir. 1999) (stating that we accord preclusive effect to administrative proceedings
    2
    “where judicial review of the administrative adjudication was available but
    unused”).
    There was a full and fair opportunity to litigate the issue in New York,
    where Lee filed the same motion to reopen with the BIA and had the same
    opportunity to brief his claims. See 
    Oyeniran, 672 F.3d at 806
    ; see also Medina-
    Lara v. Holder, 
    771 F.3d 1106
    , 1118–19 (9th Cir. 2014). Finally, the issue of
    whether Lee established a change in country conditions was necessary to decide
    the merits of his motion to reopen.
    DISMISSED.
    3
    FILED
    Lee v. Lynch, No. 12-71094                                                      NOV 02 2015
    MOLLY C. DWYER, CLERK
    OWENS, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS
    I respectfully dissent. I would prefer to remand this petition to the BIA so it
    can decide, in the first instance, whether preclusion is appropriate here.
    

Document Info

Docket Number: 12-71094

Citation Numbers: 621 F. App'x 491

Filed Date: 11/2/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023