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 th day of October, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge.
         JON O. NEWMAN,
         PIERRE N. LEVAL,
              Circuit Judges.
_________________________________

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


      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
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               -2-
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               -3-
        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


08232010-1-23                            -4-
Zhejiang         Province. 2         Regardless,         as   with      the     evidence

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 3 argue that

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 4     to     consider

evidence that was not included in the administrative record

and     we      will    not    remand     for    the   agency     to    consider      such


        2
      The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag;
and Su Zhen Weng v. Holder, No. 07-4914-ag.
        3
      The petitioners in Shuang Shi Qu v. Holder, No. 07-3507-ag;
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, Chi-
Hsun 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).
        4
      The petitioners in Cui Ping Lin v. Holder, No. 08-2539-ag,
and Liqun Chen v. Holder, No. 09-0608-ag.
08232010-1-23                               -5-
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’ 5 unauthenticated

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, 6    the   BIA   explicitly   considered    the

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

other case, 7 the BIA reasonably found that the petitioner

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 8 argue that the BIA erred by

failing to reopen their proceedings to permit them to adjust

        5
      The petitioners in Gong An Chen v. Holder, No. 08-0346-ag;
Rong Yao Yang v. U.S. Dep’t of Justice, No. 08-1345-ag; and Xiu Qin
Cao v. Holder, No. 09-1207-ag.
        6
            The petitioner in Tai Huan Li v. Holder, No. 08-2264-ag.
        7
            The petitioner in Liqun Chen v. Holder, No. 09-0608-ag.
        8
      The petitioners in Qi Duan Sun v. Holder, No. 07-4169-ag; Al
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-
status; however, we lack jurisdiction to review such determi-

nations.          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




08232010-1-23                              -7-
