21-6512 Guo v. Garland BIA A077 978 090 

### 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 1 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 2 Square, in the City of New York, on the 20 th da y of November, two thousand 3 twenty -t hree

. 4 5 PRESENT: 6 REENA RAGGI, 7 RICHARD J. SULLIVAN, 8 BETH ROBINSON, 9 Circuit Judges. 10

_____________________________________ 11 12 MIN GUO , 13 Petitioner , 14 15

v. 21

- 6512 16 NAC 17 MERRICK B. GARLAND , UNITED 18 STATES ATTORNEY GENERAL, 19 Respondent

. 20

_____________________________________ 21 222 FOR PETITIONER : Meer M. M. Rahman , New York , NY

. 1 2 FOR RESPONDENT: Brian Boynton , Principal Deputy Assistant 3 Attorney General ; Sabatino F. Leo , Assistant 4 Director; Colin J. Tucker , Trial Attorney, 5 Office of Immigration Litigation, United 6 States Department of Justice, Washington, 7 D C. 8 UPON DUE CONSIDERATION of this petition for review of a Board of 9
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 10
DECREED that the petitio n for review is DENIED

. 11

Petitioner Min Guo , a native and citizen of the People’s Republic of China, 12

seeks review of a n August 2 3 , 2021 decision of the BIA denying his motion to 13

reopen proceedings ordering his removal from the United States

. In re Min Guo , 14

No. A 077 978 090 (B.I.A. Aug . 2 3 , 2021). We review that denial decision for abuse 15

of discretion , Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006) , which is not evident 16

here

. We assume the parties’ familiarity with the underlying facts and 17
procedural history , which we reference only as necessary to explain our denial of 18

review. 19

While a motion to reopen must generally be filed within 90 days of a 20

removal order , see 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2 ) , a one

- year 21

deadline applies when, as in Guo’s case, reopening was sought to apply for lawful 223 immigrant status based on a visa self

- petition filed by an alien physically present 1

in the United States who “has been battered or has been the subject of extreme 2
cruelty perpetrated by ” a U.S. citizen spouse , 8 U.S.C. § 1154(a)(1)(A)(iii)(I)(bb) ; see 3

id. § 1229a(c)(7)(C)(iv). T he BIA may “waive this [one

- year] time limitation in the 4
case of an alien who demonstrates extraordinary circumstances or extreme 5
hardship to the alien’s child.” Id

. § 1229a(c)(7)(C)(iv)(III). 6
Although the BIA applied the general 90

- day filing deadline and not the 7

app licable one

- year deadline for battered spouses , this fact does not warrant 8

remand because, as Guo acknowledges , his motion, filed 15 years after the BIA ’s 9

removal order , was clearly untimely under either deadline. S ee Pet’r’s Br. 7 10

(“ Although Petitioner’s motion to reop en is untimely

. . . .”) ; Ajdin v. Bureau of 11
Citizenship & Immigr. Servs. , 437 F.3d 261, 266 (2d Cir. 2006) (explaining that 12

harmless error by the BIA does not necessitate remand). Nor does Guo argue that 13

section 1229a(c)(7)(C)(iv)(III) ’s “extraordinary circumstances” exception to the 14

one

- year deadline should appl y

. See Yueqing Zhang v. Gonzales , 426 F.3d 540, 541 15
n.1, 545 n.7 (2d Cir. 2005) (deeming issue abandoned when not argued in brief )

. 16

Rather, he appears to fault the BIA ’s refusal to apply a different exception , that of 17
section 1229a(c)(7)(C)(ii), which provides that “[ t ] here is no time limit on the filing 184 of a motion to reopen ” an asylum or withholding of removal claim on the basis of 1

“ changed country conditions

. ” See 8 C.F.R. § 1003.2(c)(3)(ii); Pet’r’s Br. 7 (stating 2
without elaboration that Guo “has demonstrated changed conditions which allow 3
the motion to be exempt from the time limitation”); id. at 9 (referencing “a change 4
in circumstances since the time of the original hearing” ) . To the extent Guo 5
challenges the BIA’s refusal to apply that exception, which he never cites in his 6

brief, the BIA correctly concluded that he failed to provide evidence of changed 7

country conditions, as opposed to changed personal circumstances. See Zheng v. 8

DOJ , 416 F.3d 129, 130

- 31 (2d Cir. 2005) (holding that 8 C.F.R. § 1003.2(c)(3)(ii) does 9
not apply to changed personal circumstances, only changed country conditions)

. 10
For the foregoing reasons, the petition for review is DENIED

. All pending 11
motions and applications are DENIED and stays VACATED. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe , 14 Clerk of Court 15