Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1

Attorney General Eric. H. Holder, Jr., is automatically

substituted when necessary.

08232010-1-23

07-3507-ag

Qu v. Holder

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 8 day of October, two thousand ten. th

PRESENT:

DENNIS JACOBS,

Chief Judge.

JON O. NEWMAN,

PIERRE N. LEVAL,

Circuit Judges. 

_________________________________

SHUANG SHI QU v. HOLDER, 07-3507-ag 1

A028 776 789

_________________________________

ZHEN LANG WENG v. HOLDER, 07-3941-ag

A072 766 089

_________________________________

QI DUAN SUN v. HOLDER, 07-4169-ag

A070 897 908
08232010-1-23 -2-

YAN PING CHEN, YOU CHEN YANG v. 07-4604-ag (L)

HOLDER, 07-4605-ag (Con)

A077 280 957

A073 169 009

_________________________________

SHUIFANG ZHENG v. HOLDER, 07-4699-ag

A077 550 257

_________________________________

HUI LI, MEI XIAN LI v. HOLDER, 07-4747-ag (L)

A072 836 724 07-4748-ag (Con)

A077 341 415

_________________________________

SU ZHEN WENG v. HOLDER, 07-4914-ag

A078 972 970

_________________________________

 

CHUAN JIAN ZHANG v. HOLDER, 07-4957-ag

A073 185 946

_________________________________

QIAO YING CHEN, 07-5674-ag (L)

CHI-HSUN CHEN v. HOLDER, 07-5676-ag (Con)

A077 323 004

A076 810 625

_________________________________

ZHOU JIN NI v. HOLDER, 07-5755-ag

A073 051 737

_________________________________

GONG AN CHEN v. HOLDER, 08-0346-ag

A075 842 254

_________________________________

AL WHA LIN v. HOLDER, 08-0663-ag

A075 895 504

_________________________________

SHUN XING LIN v. HOLDER, 08-1233-ag

A072 460 406

_________________________________
08232010-1-23 -3-

RONG YAO YANG v. UNITED STATES 08-1345-ag

DEPARTMENT OF JUSTICE,

A078 293 002

_________________________________

TAI HUAN LI v. HOLDER, 08-2264-ag

A073 134 641

_________________________________

CUI PING LIN v. HOLDER, 08-2539-ag

A079 408 096

_________________________________

MEI YING KE, TIAN HUA LIN 08-2997-ag (L)

v. HOLDER, 08-3002-ag (Con)

A095 433 710

A073 166 452

_________________________________

SHIN LOK CHENG v. HOLDER, 08-4125-ag

A073 148 210

_________________________________

YING LIN v. HOLDER, 08-5166-ag

A073 645 603

_________________________________

YAN TANG v. HOLDER, 08-5169-ag

A075 962 124

_________________________________

LIQUN CHEN v. HOLDER, 09-0608-ag

A077 957 589

_________________________________

BING ZHENG v. HOLDER, 09-0817-ag

A072 416 443

_________________________________

_________________________________

XIU QIN CAO v. HOLDER, 09-1207-ag

A075 980 794

_________________________________
08232010-1-23 -4-

UPON DUE CONSIDERATION of these petitions for review of

several Board of Immigration Appeals (“BIA”) decisions, it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for

review are DENIED. 

Each of these petitions challenges a decision of an

immigration judge (“IJ”) or the BIA denying a motion to reopen

based on either the movant’s failure to demonstrate changed

country conditions sufficient to avoid the applicable time and

numerical limits or the movant’s failure to demonstrate prima

facie eligibility for the underlying relief sought. See 8

C.F.R. §§ 1003.2(c), 1003.23(b). We review the denial of a

motion to reopen for abuse of discretion. Ali v. Gonzales,

448 F.3d 515, 517 (2d Cir. 2006).

Petitioners, all natives and citizens of China, filed

motions to reopen based on their claim that they fear

persecution because they have one or more children in

violation of China’s population control program. For largely

the same reasons as this Court set forth in Jian Hui Shao v.

Mukasey, 546 F.3d 138, 168-72 (2d Cir. 2008), we conclude

there was no error in the BIA’s decisions. Although the

petitioners in Jian Hui Shao were from Fujian Province, as are

most of the petitioners here, two petitioners are from
The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; 2

and Su Zhen Weng v. Holder, No. 07-4914-ag. 

The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag; 3

Qi Duan Sun v. Holder, No. 07-4169-ag; Hui Li, Mei Xian Li v.

Holder, Nos. 07-4747-ag (L), 07-4748-ag (Con); Qiao Ying Chen, ChiHsun Chen v. Holder, Nos. 07-5674-ag (L), 07-5676-ag (Con); Tai

Huan Li v. Holder, No. 08-2264-ag; Ying Lin v. Holder, No. 08-5166-

ag; and Yan Tang v. Holder, No. 08-5169-ag. The petitioner in Zhou

Jin Ni v. Holder, No. 07-5755-ag also argues that he was eligible

to file a successive asylum application; however, we decline to

consider that argument because it was not exhausted before the BIA.

See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

Cir. 2007). 

The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag, 4

and Liqun Chen v. Holder, No. 09-0608-ag.

08232010-1-23 -5-

Zhejiang Province. Regardless, as with the evidence 2

discussed in Jian Hui Shao, the evidence they have submitted

related to Zhejiang Province either does not discuss forced

sterilizations or references isolated incidents of persecution

of individuals who are not similarly situated to the

petitioners. See id. at 160-61, 171-72. 

To the extent that seven of the petitioners argue that 3

they were eligible to file successive asylum applications

based solely on their changed personal circumstances, their

arguments are foreclosed by our decision in Yuen Jin v.

Mukasey, 538 F.3d 143 (2d Cir. 2008). 

We decline any request by petitioners to consider 4

evidence that was not included in the administrative record

and we will not remand for the agency to consider such
The petitioners in Gong An Chen v. Holder, No. 08-0346-ag; 5

Rong Yao Yang v. U.S. Dep’t of Justice, No. 08-1345-ag; and Xiu Qin

Cao v. Holder, No. 09-1207-ag.

The petitioner in Tai Huan Li v. Holder, No. 08-2264-ag. 6

The petitioner in Liqun Chen v. Holder, No. 09-0608-ag. 7

The petitioners in Qi Duan Sun v. Holder, No. 07-4169-ag; Al 8

Wha Lin v. Holder, No. 08-0663-ag; Cui Ping Lin v. Holder, No. 08-

2539-ag; and Yan Tang v. Holder, No. 08-5169-ag.

08232010-1-23 -6-

evidence. See 8 U.S.C. § 1252(b)(4)(A); see also Xiao Xing Ni

v. Gonzales, 494 F.3d 260, 269 (2d Cir. 2007). To the extent

that the BIA declined to credit petitioners’ unauthenticated 5

evidence in light of an underlying adverse credibility

determination, the BIA did not abuse its discretion. See Qin

Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d Cir. 2007). 

Two of the petitioners argue that the BIA applied an

incorrect burden of proof by requiring them to establish more

than their prima facie eligibility for relief. However, in

one of those cases, the BIA explicitly considered the 6

petitioner’s prima facie eligibility for relief and, in the

other case, the BIA reasonably found that the petitioner 7

failed to demonstrate changed country conditions excusing the

untimely filing of her motion to reopen. See 8 C.F.R. §

1003.2(c); see also INS v. Abudu, 485 U.S. 94, 104 (1988). 

Some of the petitioners argue that the BIA erred by 8

failing to reopen their proceedings to permit them to adjust
08232010-1-23 -7-

status; however, we lack jurisdiction to review such determinations. Because petitioners’ motions were unquestionably

untimely, and eligibility to adjust status is not a statutory

basis for excusing the untimely filing of a motion to reopen,

see 8 U.S.C. § 1229a(c)(7)(C)(ii), those petitioners were

necessarily invoking the BIA’s authority to reopen proceedings

sua sponte, see 8 C.F.R. § 1003.2(a). The BIA’s determination

as to whether it will exercise that authority is entirely

discretionary and thus beyond the scope of our jurisdiction.

See Ali, 448 F.3d at 518.

For the foregoing reasons, these 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