09-2476-ag

Tang v. Holder

BIA

A070 530 729

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 21 day of January, two thousand ten. st

5

6 PRESENT:

7 GUIDO CALABRESI,

8 BARRINGTON D. PARKER,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _______________________________________

12

13 XUE MING TANG, 

14 Petitioner,

15

16 v. 09-2476-ag 

17 NAC

18

19 ERIC H. HOLDER, Jr., U.S. ATTORNEY 

20 GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Oleh R. Tustaniwsky, New York, New

25 York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General, Richard M. Evans, Assistant

29 Director, Nancy E. Friedman, Senior

30 Litigation Counsel, Office of

31 Immigration Litigation, Civil

32 Division, United States Department

33 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Xue Ming Tang, a native and citizen of the

6 People’s Republic of China, seeks review of a May 13, 2009

7 order of the BIA denying his motion to reopen his removal

8 proceedings. In re Xue-Ming Tang, No. A070 530 729 (B.I.A.

9 May 13, 2009). We assume the parties’ familiarity with the

10 underlying facts and procedural history of the case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien who has been ordered removed may

14 file one motion to reopen, but must do so within 90 days of

15 the final administrative decision. 8 U.S.C. § 1229a(c)(7).

16 Here, the BIA properly denied Tang’s motion to reopen as

17 untimely where he filed it six months after his June 2008

18 final order of removal. See id.; 8 C.F.R. § 1003.2(c)(2). 

19 The 90-day filing deadline may be equitably tolled

20 where the alien can establish “changed country conditions

21 arising in the country of nationality . . . .” 8 U.S.C.

22 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). Tang

23 argues that the BIA abused its discretion by failing to
3

1 properly consider the evidence of changed country conditions

2 in the record. However, the BIA is not required to

3 “expressly parse or refute on the record each individual

4 argument or piece of evidence offered by the petitioner” as

5 long as it “has given reasoned consideration to the

6 petition, and made adequate findings.” Wei Guang Wang v.

7 BIA, 437 F.3d 270, 275 (2d Cir. 2006). Indeed, a review of

8 the record reveals that the BIA reasonably considered the

9 record evidence and properly found that reopening was not

10 warranted because Tang’s motion was based not on changed

11 country conditions in China, but on changed personal

12 circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii). 

13 Accordingly, as Tang is under a final order of removal

14 and did not file a timely motion to reopen, the BIA did not

15 abuse its discretion in concluding that he was not eligible

16 to file a successive asylum application based solely on his

17 changed personal circumstances. See Yuen Jin v. Mukasey,

18 538 F.3d 143, 151-56 (2d Cir. 2008); see also Wei Guang

19 Wang, 437 F.3d at 274 (noting that “apparent gaming of the

20 system in an effort to avoid [removal] is not tolerated by

21 the existing regulatory scheme”). The Court need not reach

22 Tang’s argument that he is prima facie eligible for relief
4

1 because he was required to show changed country conditions

2 in order to succeed on his untimely motion. See 8 U.S.C.

3 § 1229a(c)(7)(C)(ii). 

4 Finally, because Tang’s claims for asylum, withholding

5 of removal, and CAT relief, were based on the same factual

6 predicate, the BIA did not err when it declined to consider

7 his CAT claim in the denial of his motion. See Paul v.

8 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 

9 For the foregoing reasons, the petition for review is

10 DENIED. As we have completed our review, any stay of

11 removal that the Court previously granted in this petition

12 is VACATED, and any pending motion for a stay of removal in

13 this petition is DISMISSED as moot. Any pending request for

14 oral argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2), and Second

16 Circuit Local Rule 34(b).

17

18

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

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