    07-4706-ag
    Wu v. Holder

                                                                                  BIA
                                                                           A70 908 558
                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

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         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 11 th day of May, two thousand ten.

    PRESENT:
             GUIDO CALABRESI,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                    Circuit Judges.
    _________________________________________

    AI QING WU,
             Petitioner,

                   v.                                        07-4706-ag
                                                             NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, * UNITED STATES
    DEPARTMENT OF JUSTICE,
             Respondents.
    _________________________________________

    FOR PETITIONER:               Bruno Joseph Bembi, Hempstead, N.Y.

    FOR RESPONDENT:               Gregory G. Katsas, Assistant


            *
           Pursuant to Federal Rule of Appellate Procedure
    43(c)(2), Attorney General Eric H. Holder, Jr., is
    automatically substituted for former Acting Attorney General
    Peter D. Keisler as a respondent in this case.
                        Attorney General; Ernesto H. Molina,
                        Jr., Assistant Director; Jamie Dowd,
                        Senior Litigation Counsel, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.


    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED in part and DISMISSED in part.

    Petitioner Ai Qing Wu, a native and citizen of the

People’s Republic of China, seeks review of an October 12,

2007, order of the BIA denying his motion to reopen.        In re

Ai Qing Wu, No. A070 908 558 (B.I.A. Oct. 12, 2007).        We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We review a BIA decision to deny a motion to reopen

deferentially for abuse of discretion.     Jian Hui Shao v.

Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).     There is no

dispute that Wu’s second motion to reopen, filed in November

2006, was untimely and number-barred because the BIA issued

a final order of removal in June 2002.     See 8 C.F.R. §

1003.2(c)(2).   There are no time and numerical limits for

filing a motion to reopen, however, if it is “based on


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changed circumstances arising in the country of nationality

or in the country to which deportation has been ordered, if

such evidence is material and was not available and could

not have been discovered or presented at the previous

hearing.”   8 C.F.R. § 1003.2(c)(3)(ii).   The BIA reasonably

found that Wu did not qualify for such an exception.

    Wu failed to establish changed country conditions based

on the birth of his U.S. citizen children.    See Li Yong

Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

Cir. 2005); see also Wei Guang Wang v. BIA, 437 F.3d 270,

273-74 (2d Cir. 2006).   Moreover, we have previously

reviewed the BIA’s analysis of evidence similar to that

which Wu submitted in this case and have found no error in

its conclusion that such evidence does not demonstrate

either material changed country conditions excusing the time

and numerical limits for filing a motion to reopen or a

reasonable possibility of forced sterilization.    See Jian

Hui Shao, 546 F.3d at 158-73; see also Wei Guang Wang, 437

F.3d at 275.   In addition, the BIA’s failure to consider

Wu’s argument that he was eligible to file a successive

asylum application based on his changed personal

circumstances is of no moment because remand would be


                              3
futile, see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d

281, 289 (2d Cir. 2007).   See our decision in Yuen Jin v.

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

“an alien under a final removal order must file a successive

asylum application in conjunction with a motion to reopen

and in accordance with those procedural requirements.”     Id.

at 156.   Accordingly, we deny Wu’s petition for review to

this extent.

    We lack jurisdiction to review the BIA’s decision

insofar as it declined to reopen Wu’s proceedings sua sponte

to allow an application for adjustment of status.     Mahmood

v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because

Mahmood’s untimely motion [seeking] to reopen [based on his

eligibility to adjust status] was not excused by any

regulatory exception, his motion to reopen could only be

considered upon exercise of the Agency’s sua sponte

authority.”); See Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006); 8 C.F.R. § 1003.2(a).   Moreover, Wu has not

demonstrated that the BIA “declined to exercise its sua

sponte authority because it misperceived the legal

background and thought, incorrectly, that a reopening would

necessarily fail [such that] remand to the Agency for


                              4
reconsideration in view of the correct law is appropriate.”

Mahmood, 570 F.3d at 469.   Accordingly, we dismiss Wu’s

petition for review to this extent.

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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