2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-2008

Zhan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3125

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RESUBMIT CLD-401 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-3125

___________

CUI YING ZHAN,

 Petitioner

VS.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of a Decision of the 

Board of Immigration Appeals

(Agency No. A78-858-596)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted for Possible Summary Action 

under Third Circuit LAR 27.4 and I.O.P. 10.6

June 3, 2008

Before: RENDELL, SMITH and JORDAN Circuit Judges

(Filed: June 23, 2008)

_________

 OPINION

_________

PER CURIAM

Petitioner, Cui Ying Zhan, has filed a motion for a stay of removal and a petition

for review from the order of the Board of Immigration Appeals (“BIA”) denying her

motion to reopen. The government has filed a motion for summary action, to which
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Petitioner has filed a response in opposition. For the reasons that follow, we will

summarily deny the petition for review. See Third Circuit LAR 27.4 and I.O.P. 10.6. 

Petitioner, a native and citizen of the People’s Republic of China, entered the

United States on February 5, 2002, in Chicago, Illinois. Petitioner did not possess a valid

entry document and was served on February 8, 2002, with a charging document, alleging

she was not in possession of a valid entry document, she committed fraud, and that she

falsely identified herself as a United States citizen. Petitioner was found removable by

the Immigration Judge (“IJ”). Petitioner applied for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). The IJ denied relief on December

2, 2002, and Petitioner, through counsel, sought review by the Board of Immigration

Appeals (“BIA”). On April 9, 2004, the BIA affirmed the IJ’s decision. Almost three

years later, Petitioner filed a motion to reopen, which the BIA denied on June 25, 2007. 

Petitioner, through counsel, has filed a petition for review and a motion for a stay of

removal. The government opposes the motion and has filed a motion for summary action. 

Petitioner has filed a response in opposition.

We have jurisdiction to review the BIA’s denial of a motion to reopen. See Nocon

v. INS, 789 F.2d 1028, 1032-33 (3d Cir. 1986). We review the denial of a motion to

reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). 

Under the abuse of discretion standard, the BIA’s decision may be reversed only if it is

“arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.
3

2002). We will summarily deny a petition for review if the petition presents no

substantial question. See I.O.P. 10.6. 

Although Petitioner’s petition for review seeks review of the BIA’s April 9, 2004

decision and the BIA’s June 25, 2007 decision, only the BIA’s June 25, 2007 decision,

denying Petitioner’s motion to reopen, is properly before this Court. See Nocon, 789 F.2d

at 1032-33 (explaining that final deportation orders and orders denying motions to

reconsider are independently reviewable and a timely petition for review must be filed

with respect to the specific order sought to be reviewed). Accordingly, our review does

not extend to the BIA’s April 9, 2004 order. See Stone v. INS, 514 U.S. 386, 405 (1995)

(holding that a motion for reconsideration does not toll the time to file a petition for

review of a final deportation order). 

 Petitioner’s motion before the BIA sought to reopen her proceedings because of

the birth of her two children. The BIA concluded that Petitioner’s motion to reopen was

untimely. Although the BIA recognized that there was an exception to the timeliness

requirements based on changed circumstances in the country of nationality, the BIA

concluded that Petitioner had failed to demonstrate such a change. See 8 C.F.R.

§ 1003.2(c)(ii). The BIA explained that, contrary to Petitioner’s assertion, the birth of a

child does not constitute a change in personal circumstances that falls within

§ 1003.2(c)(ii)’s exception. See Guan v. Board of Immigration Appeals, 345 F.3d 47, 49

(2d Cir. 2003). The BIA further concluded that Petitioner failed to demonstrate that
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country conditions had changed in a manner that materially impacts her eligibility for

asylum. 

We conclude that the BIA’s decision denying Petitioner’s motion to reopen is not

arbitrary, irrational, or contrary to law. After careful review of Petitioner’s motion to

reopen, response in opposition and exhibits in support thereof, we conclude that

Petitioner has failed to demonstrate changed country conditions. 8 C.F.R.

§ 1003.2(c)(3)(ii). Here, Petitioner’s motion to reopen provides information regarding the

current country conditions for the People’s Republic of China, but fails to present

evidence of how those conditions have materially changed since her hearing before the IJ

in 2002. Petitioner’s response in opposition to the motion for summary action simply

states “[P]etitioner has offered other evidence relating to the present enforcement of the

family planning in other part[s] of China,” but fails to identify any evidence

demonstrating a change in family planning policies. (Pet’r Resp. in Opp’n 5.) 

Furthermore, Petitioner’s assertion that the BIA’s focus on the Fujian Province imposed

an “unreasonable stringent burden of proof” is meritless. (Id.) The BIA’s focus on the

Fujian Province did not prejudice Petitioner or impose a stricter standard of proof. 

Because Petitioner has failed to demonstrate changed country conditions, the BIA did not

err by denying her motion to reopen. 

For the foregoing reasons, we will grant the government’s motion for summary

action and summarily deny Petitioner’s petition for review. Petitioner’s motion for stay
5

of removal is denied as moot.