         09-2476-ag
         Tang v. Holder
                                                                                           BIA
                                                                                   A070 530 729

                               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 .

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of January, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                BARRINGTON D. PARKER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11       _______________________________________
12
13       XUE MING TANG,
14                Petitioner,
15
16                        v.                                       09-2476-ag
17                                                                 NAC
18
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Oleh R. Tustaniwsky, New York, New
25                                       York.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General, Richard M. Evans, Assistant
29                                       Director, Nancy E. Friedman, Senior
30                                       Litigation Counsel, Office of
31                                       Immigration Litigation, Civil
32                                       Division, United States Department
33                                       of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

3    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4    review is DENIED.

5        Petitioner Xue Ming Tang, a native and citizen of the

6    People’s Republic of China, seeks review of a May 13, 2009

7    order of the BIA denying his motion to reopen his removal

8    proceedings.     In re Xue-Ming Tang, No. A070 530 729 (B.I.A.

9    May 13, 2009).     We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006).     An alien who has been ordered removed may

14   file one motion to reopen, but must do so within 90 days of

15   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

16   Here, the BIA properly denied Tang’s motion to reopen as

17   untimely where he filed it six months after his June 2008

18   final order of removal.     See id.; 8 C.F.R. § 1003.2(c)(2).

19       The 90-day filing deadline may be equitably tolled

20   where the alien can establish “changed country conditions

21   arising in the country of nationality . . . .”     8 U.S.C.

22   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).     Tang

23   argues that the BIA abused its discretion by failing to


                                     2
1    properly consider the evidence of changed country conditions

2    in the record.   However, the BIA is not required to

3    “expressly parse or refute on the record each individual

4    argument or piece of evidence offered by the petitioner” as

5    long as it “has given reasoned consideration to the

6    petition, and made adequate findings.”     Wei Guang Wang v.

7    BIA, 437 F.3d 270, 275 (2d Cir. 2006).     Indeed, a review of

8    the record reveals that the BIA reasonably considered the

9    record evidence and properly found that reopening was not

10   warranted because Tang’s motion was based not on changed

11   country conditions in China, but on changed personal

12   circumstances.   See 8 C.F.R. § 1003.2(c)(3)(ii).

13       Accordingly, as Tang is under a final order of removal

14   and did not file a timely motion to reopen, the BIA did not

15   abuse its discretion in concluding that he was not eligible

16   to file a successive asylum application based solely on his

17   changed personal circumstances.     See Yuen Jin v. Mukasey,

18   538 F.3d 143, 151-56 (2d Cir. 2008); see also Wei Guang

19   Wang, 437 F.3d at 274 (noting that “apparent gaming of the

20   system in an effort to avoid [removal] is not tolerated by

21   the existing regulatory scheme”).     The Court need not reach

22   Tang’s argument that he is prima facie eligible for relief



                                   3
1    because he was required to show changed country conditions

2    in order to succeed on his untimely motion.    See 8 U.S.C.

3    § 1229a(c)(7)(C)(ii).

4        Finally, because Tang’s claims for asylum, withholding

5    of removal, and CAT relief, were based on the same factual

6    predicate, the BIA did not err when it declined to consider

7    his CAT claim in the denial of his motion.    See Paul v.

8    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

9        For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

12   is VACATED, and any pending motion for a stay of removal in

13   this petition is DISMISSED as moot. Any pending request for

14   oral argument in this petition is DENIED in accordance with

15   Federal Rule of Appellate Procedure 34(a)(2), and Second

16   Circuit Local Rule 34(b).
17
18
19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
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