     14-4673
     Jin v. Lynch
                                                                                         BIA
                                                                               Christensen, IJ
                                                                               A200 179 471

                         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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   22nd day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PIERRE N. LEVAL,
 9            JOSÉ A. CABRANES,
10                 Circuit Judges.
11   _____________________________________
12
13   XIU YAN JIN,
14            Petitioner,
15
16                  v.                                               14-4673
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Gerald Karikari, New York,
25                                       New York.
26
27   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
28                                       Assistant Attorney General;
29                                       Jennifer P. Willams, Senior
30                                       Litigation Counsel; Alexander J.
 1                                  Lutz, Trial Attorney, Office of
 2                                  Immigration Litigation, United
 3                                  States Department of Justice,
 4                                  Washington, D.C.
 5
 6         UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   DENIED.

10         Petitioner Xiu Yan Jin, a native and citizen of the People’s

11   Republic of China, seeks review of a November 20, 2014, decision

12   of the BIA that (1) affirmed a November 27, 2012, decision of

13   an Immigration Judge (“IJ”), pretermitting as untimely her

14   application for asylum, and (2) denied her motion to remand.

15   In re Xiu Yan Jin, No. A200 179 471 (B.I.A. Nov. 20, 2014), aff’g

16   No. A200 179 471 (Immig. Ct. N.Y. City Nov. 27, 2012).     We assume

17   the   parties’   familiarity    with   the   underlying   facts   and

18   procedural history in this case.

19         The only issue before us is whether the BIA abused its

20   discretion in denying Jin’s motion to remand.        We review the

21   BIA’s denial of a motion to remand for abuse of discretion.        Li

22   Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.

23   2005).    “A motion to remand that relies on newly available

                                       2
1    evidence is held to the substantive requirements of a motion

2    to reopen.”       Id. at 156.          A movant seeking remand for

3    consideration     of     new   evidence    must    “present      material,

4    previously unavailable evidence.”               Id. at 158; see also

5    8 C.F.R.      § 1003.2(c)(1).      “[I]n        reviewing     the     BIA’s

6    determination     of    whether   previously      unavailable    evidence

7    supported [a] motion to reopen, we must inquire whether the

8    evidence could have been presented at the hearing before the

9    IJ.”    Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006).

10          The BIA did not abuse its discretion in denying Jin’s motion

11   for failure to submit previously unavailable evidence.                Jin’s

12   evidence predated her 2012 hearing, and her ex-husband’s

13   affidavit discussed events that occurred prior to that hearing.

14   The BIA did not abuse its discretion in rejecting Jin’s argument

15   that her ex-husband refused to provide her with this evidence

16   in her underlying proceedings because he made no mention of any

17   such refusal in the affidavit he prepared in support of her

18   motion to remand.       See Ke Zhen Zhao v. U.S. Dep’t of Justice,

19   265 F.3d 83, 93 (2d Cir. 2001) (“An abuse of discretion may be

20   found    in   those    circumstances    where    the   Board’s      decision

21   provides no rational explanation, inexplicably departs from
                                         3
1    established policies, is devoid of any reasoning, or contains

2    only summary or conclusory statements; that is to say, where

3    the Board has acted in an arbitrary or capricious manner.”

4    (internal citations omitted)).

5        Accordingly, the BIA did not abuse its discretion in

6    denying Jin’s motion to remand.     See 8 C.F.R. § 1003.2(c)(1);

7    Li Yong Cao, 421 F.3d at 156.

8        For the foregoing reasons, the petition for review is

9    DENIED.    As we have completed our review, any stay of removal

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot.    Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O=Hagan Wolfe, Clerk




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