Juhua Dong v. Holder , 391 F. App'x 908 ( 2010 )

07-5035-ag (L); 08-3877-ag (Con)
Dong v. Holder
BIA
Weisel, IJ
A098 413 257
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
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 31 st day of August, two thousand ten.
PRESENT: DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
PIERRE N. LEVAL,
Circuit Judges.
_________________________________________
JUHUA DONG,
Petitioner,
07-5035-ag (L);
v. 08-3877-ag (Con)
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
_________________________________________
FOR PETITIONER: Theodore N. Cox, New York, New York.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Eric H. Holder, Jr., is automatically substituted for former
Attorney General Michael B. Mukasey as respondent in this case.
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FOR RESPONDENT: Michael F. Hertz, Acting Assistant
Attorney General; David V. Bernal,
Assistant Director; Jesse M. Bless,
Trial Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of these petitions for review of
two Board of Immigration Appeals (“BIA”) decisions, it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for
review are DENIED.
Petitioner Juhua Dong, a native and citizen of the
People’s Republic of China, seeks review of: (1) a November 2,
2007 order of the BIA, reversing the June 22, 2005 decision of
Immigration Judge (“IJ”) Robert D. Weisel insofar as it
pretermitted her application for asylum as untimely and
affirming the IJ’s decision insofar as it denied her
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”), In re Juhua
Dong, A098 413 257 (B.I.A. Nov. 2, 2007), aff’g No. A098 413
257 (Immig. Ct. N.Y. City June 22, 2005); (2) a November 2,
2007 order of the BIA denying her motion to reopen, In re
Juhua Dong, A098 413 257 (B.I.A. Nov. 2, 2007); and (3) a July
23, 2008 order of the BIA denying her motion to reconsider, In
re Juhua Dong, No. A098 413 257 (B.I.A. July 23, 2008). We
assume the parties’ familiarity with the underlying facts and
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procedural history in this case.
When the BIA issues an independent decision on remand, we
review the BIA’s decision alone. See Belortaja v. Gonzales,
484 F.3d 619, 622-23 (2d Cir. 2007). We review the agency’s
factual findings under the substantial evidence standard. 8
U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d
90, 95 (2d Cir. 2008). 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); Jin Ming
Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006). When the
BIA considers relevant evidence of country conditions in
evaluating a motion, we review the BIA’s factual findings
under the substantial evidence standard. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not err in finding that the evidence in
support of Dong’s application for relief from removal did not
establish that she has a well-founded fear of forced
sterilization based on the birth of her U.S. citizen children.
We have previously reviewed the BIA’s consideration of
evidence similar to that which Dong submitted and have found
no error in its conclusion that such evidence is insufficient
to establish an objectively reasonable fear of persecution.
See Jian Hui Shao, 546 F.3d at 156-65.
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Likewise, the BIA did not err in denying Dong’s motion to
reopen. Contrary to Dong’s assertion that the BIA erroneously
required her to satisfy a heightened burden of proof in
support of her motion, the BIA did not err in declining to
consider her previously available evidence, see INS v. Abudu,
485 U.S. 94, 104-05 (1988), and reasonably concluded that her
previously unavailable evidence was not material to her motion
because it would not support her ultimate claim of a well-
founded fear of forced sterilization, see Jian Hui Shao, 546
F.3d at 168-72; see also Matter of S-Y-G-, 24 I & N Dec. 247,
251 (BIA 2007) (recognizing that a movant “must meet the heavy
burden of showing that if proceedings before the immigration
judge were reopened, . . . the new evidence offered would
likely change the result in the case”) (internal quotation
marks omitted). Insofar as Dong argues that her due process
rights were violated by the BIA’s reliance on mistranslated
country conditions evidence to deny her motion to reopen, she
has no due process right in seeking a discretionary grant of
a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143,
156-57 (2d Cir. 2008) (holding that “an alien who has already
filed one asylum application, been adjudicated removable and
ordered deported, and who has nevertheless remained in the
country illegally for several years, does not have a liberty
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or property interest in a discretionary grant of asylum”).
Because Dong does not sufficiently challenge the BIA’s
dispositive determination that her motion to reconsider was
untimely, we decline to review the BIA’s denial of that
motion. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petitions for review are
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in these petitions is
VACATED, and any pending motion for a stay of removal in these
petitions is DISMISSED as moot. Any pending request for oral
argument in these petitions is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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