         08-1050-ag
         Cheng v. Holder
                                                                                        BIA
                                                                                A077 653 238
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 7 th day of December, two thousand nine.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                      Circuit Judges.
11       _______________________________________
12
13       LIAO LIN CHENG,
14                Petitioner,
15
16                         v.                                   08-1050-ag
17                                                              NAC
18
19       ERIC H. HOLDER, JR., 1
20                Respondent.
21       _______________________________________


                  1
               Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr., is
         automatically substituted for former Attorney General
         Michael B. Mukasey.
 1   FOR PETITIONER:           Liao Lin Cheng, Pro Se.
 2
 3   FOR RESPONDENT:           Gregory G. Katsas, Assistant
 4                             Attorney General; Barry J.
 5                             Pettinato, Assistant Director; Dalin
 6                             R. Holyoak, Trial Attorney, Office
 7                             of Immigration Litigation, United
 8                             States Department of Justice,
 9                             Washington, D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED.

15       Petitioner Liao Lin Cheng, a native and citizen of the

16   People’s Republic of China, seeks review of the February 13,

17   2008 order of the BIA denying his motion to reopen. In re

18   Liao Lin Cheng, No. A077 653 238 (B.I.A. Feb. 13, 2008).     We

19   assume the parties’ familiarity with the underlying facts

20   and procedural history in this case.

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

22   abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

23   Cir. 2005) (per curiam).     An alien seeking to reopen

24   proceedings must file her motion to reopen no later than 90

25   days after the date on which the final administrative

26   decision was rendered.     See 8 C.F.R. § 1003.2(c)(2).

27   However, there is no time limit for filing a motion to


                                     2
1    reopen if it is “based on changed circumstances arising in

2    the country of nationality or in the country to which

3    deportation has been ordered, if such evidence is material

4    and was not available and could not have been discovered or

5    presented at the previous hearing.”       8 C.F.R.

6    § 1003.2(c)(3)(ii).   Nonetheless, the agency may deny a

7    motion to reopen, regardless of any alleged change in

8    circumstances, if it does not establish the alien’s prima

9    facie eligibility for relief.       See INS v. Abudu, 485 U.S.

10   94, 104-05 (1988).

11       In making his adverse credibility determination in the

12   underlying merits proceeding, the IJ relied on the absence

13   of corroboration regarding the existence of Cheng’s son, who

14   he asserted was born in China in October 1994.       Cheng has

15   never challenged the agency’s credibility determination.

16   Thus, at the agency level, that determination became the law

17   of the case.   See Matter of S-Y-G, 24 I. & N. Dec. 247, 250

18   (BIA 2007) (“We note that because the applicant did not seek

19   judicial review of our 1997 order, the Immigration Judge’s

20   adverse credibility determination remains the law of the

21   case.”).   In his motion to reopen, Cheng made no mention of

22   his supposed first child, referring only to a child born in

23   the United States in 2006.   In turn, the BIA found that

24   because Cheng based his motion only on the birth of a single

                                     3
1    child, the “limited issue” presented was whether that birth

2    “would be viewed as a violation of the birth control limits

3    in his locality.”   In Jian Hui Shao v. Mukasey, this Court

4    found no error in the evidentiary framework the BIA had

5    adopted in analyzing claims, like Cheng’s, based on a fear

6    arising from the birth of more children than the Chinese

7    family planning policy would allow.    546 F.3d 138, 143 (2d

8    Cir. 2008).   Under that framework, the alien must: (1)

9    identify the government policy implicated by the births at

10   issue, (2) establish that government officials would view

11   the births as a violation of the policy, and (3) demonstrate

12   a reasonable possibility that government officials would

13   enforce the policy against petitioner through means

14   constituting persecution.   Id.   Cheng’s claim fails at each

15   prong because the evidence he presented concerned the

16   government’s treatment of citizens with more than one child.

17   Thus, to the extent Cheng based his motion to reopen on an

18   alleged fear based on a single child, as the BIA found, he

19   did not establish his prima facie eligibility for relief.

20   See Matter of J-H-S-, 24 I. & N. Dec. 196, 199 (BIA 2007)

21   (requiring that in order to succeed on a family planning

22   claim, an individual must initially establish “through

23   credible testimony or otherwise, that he [] fathered [] more

24   than one child, in violation of that policy”).

                                   4
1        Cheng argues before this Court that he has two children

2    in violation of the policy.    That argument is unexhausted

3    because he failed to raise it before the BIA.    Lin Zhong v.

4    U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007);

5    Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90

6    (2d Cir. 2001) (explaining that where the alien files a

7    timely petition from the denial of a motion, but not from

8    the underlying affirmance of the removal order, the Court

9    may review only the denial of the motion).

10       Accordingly, the BIA did not abuse its discretion in

11   denying Cheng’s untimely motion to reopen.    See Kaur, 413

12   F.3d at 233; 8 C.F.R. § 1003.2(c)(2).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24
25                                 By:___________________________



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