2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-6-2009

Gao v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1316

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Gao v. Atty Gen USA" (2009). 2009 Decisions. Paper 853.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/853
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-1316

___________

XUE NONG GAO,

Petitioner

vs.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A78-709-575)

Immigration Judge: Honorable Nicole Kim

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 5, 2009

Before: FUENTES, WEIS and GARTH, Circuit Judges

 Opinion filed : August 06, 2009 

___________

OPINION

___________

PER CURIAM.

Xue Nong Gao petitions for review of an order of the Board of Immigration

Appeals (“BIA”) denying his motion to reopen. For the reasons that follow, we will deny

his petition for review.
2

I.

Gao, a native and citizen of China, entered the United States in October

1999. He was placed into removal proceedings, and thereafter sought asylum,

withholding of removal, and relief under the Convention Against Torture. In December

2001, the IJ denied Gao’s application for asylum based on her finding that Gao was not

credible and that he had submitted fraudulent documents in support of his claim that his

wife was forced to undergo an abortion in China. In February 2003, the BIA agreed with

the IJ’s determination and dismissed his appeal. It does not appear that Gao sought

review of the BIA’s decision.

Four years later, Gao filed a motion to reopen before the BIA, alleging that

he joined the China Democracy Party (“CDP”) and, as a member of the CDP, had

participated in protest rallies in front of the Chinese Consulate in New York City and the

White House in Washington, D.C., distributed propaganda materials in the New York

area, expressed his political opinion in two articles published on the internet, and

recruited members for the CDP. (J.A. 159-62.) He claimed that this behavior, coupled

with the increased emphasis on prohibiting political dissent in China in recent years,

warranted the reopening of his removal proceedings. (J.A. 172-80.) He also argued that,

pursuant to 8 C.F.R. § 208.4(a)(4)(i)(B), he should be permitted to file a successive

asylum application based on the change in his personal circumstances. (J.A. 170-71.) 

The BIA held that Gao had not established a change in country conditions in China, nor
3

had he established a prima facie case that he would be persecuted if returned to China due

to his participation in the CDP. (J.A. 18-19.) The BIA therefore concluded that Gao had

not satisfied the standard for an untimely motion to reopen. (J.A. 19.) The BIA further

concluded that the circumstances described by Gao did not warrant the exercise of its

limited discretion to sua sponte reopen his asylum proceedings, and that because he was

subject to a final order of removal, he was not eligible to submit a successive asylum

application based on changed personal circumstances. (J.A. 18-19.) Accordingly, the

BIA denied Gao’s motion to reopen. Gao timely filed a petition for review.

II.

We have jurisdiction over this petition for review pursuant to 8 U.S.C.

§ 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion. See

Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will

reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian

v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). 

III. 

Gao’s motion to reopen was clearly untimely. See 8 C.F.R. § 1003.2(c)(2). 

As the BIA held, his alleged change in personal circumstances – his membership in and

activities with the CDP – will not suffice to extend the time in which to reopen. See 8

C.F.R. § 1003.2(c)(3)(ii). An exception to this rule exists for motions that rely on

evidence of “changed circumstances arising in the country of nationality . . . if such
4

evidence is material and was not available and could not have been discovered or

presented at the previous proceeding.” Id. While Gao may have alleged a change in

country conditions in his motion to reopen, we cannot conclude that the BIA abused its

discretion in denying his motion. In INS v. Abudu, 485 U.S. 94 (1988), the Supreme

Court set forth three bases on which the BIA may deny a motion to reopen:

First, it may hold that the movant has not established a prima

facie case for the underlying substantive relief

sought. . . . Second, the BIA may hold that the movant has not

introduced previously unavailable, material evidence, or, in an

asylum application case, that the movant has not reasonably

explained his failure to apply for asylum initially. . . . Third,

in cases in which the ultimate grant of relief is discretionary

(asylum, suspension of deportation, and adjustment of status,

but not withholding of deportation), the BIA may leap ahead,

as it were, over the two threshold concerns (prima facie case

and new evidence/reasonable explanation), and simply

determine that even if they were met, the movant would not

be entitled to the discretionary grant of relief.

Id. at 104-05. As we have explained, “motions to reopen immigration proceedings are

‘traditionally disfavored . . . ’” and therefore we “review deferentially the Board’s

decision not to reopen [petitioner’s] case.” Sevoian, 290 F.3d at 171-72.

In the instant case, the BIA concluded that Gao failed to establish a prima

facie case of entitlement to the underlying relief sought: asylum, withholding of removal

and relief under the Convention Against Torture. To that end, the BIA held: “That the

respondent will be persecuted if returned to China due to his participation in the CDP is

speculative in nature and he has failed to meet the ‘heavy burden’ of showing that a
motion to reopen is warranted. The respondent has not provided adequate new

information, errors of law or fact, evidence, or argument sufficient to grant the motion.” 

(J.A. 20.) The BIA’s conclusion is not “arbitrary, irrational, or contrary to law.” 

Sevoian, 290 F.3d at 174.

Additionally, the BIA correctly held that an asylum applicant who is subject

to a final order of removal may not file a successive asylum application outside of the 90-

day reopening period based solely on a change in personal circumstances. See Liu, 555

F.3d at 150. Finally, under the circumstances presented here, we lack jurisdiction to

review the BIA’s decision not to exercise its discretion to sua sponte consider Gao’s

untimely motion to reopen. See Cruz v. Attorney General, 452 F.3d 240, 250 (3d Cir.

2006). 

Based on the foregoing, we will deny the petition for review.

5