                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-23-2004

Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3079




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 03-3079


                                    XIN SHUI LIU,

                                                 Petitioner,
                                            v.

            JOHN ASHCROFT, Attorney General of the United States;
          BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES,

                                                 Respondents


                             Petition for Review of an Order
                          of the Board of Immigration Appeals
                                (Board No. A70-893-818)




                      Submitted under Third Circuit LAR 34.1(a)
                                    July 2, 2004

           Before: AMBRO, ALDISERT and STAPLETON, Circuit Judges.

                                  (Filed: July 23, 2004)

                                         _____

                              OPINION OF THE COURT


ALDISERT, Circuit Judge.

      Because we write only for the parties, who are familiar with the facts, the
procedural history and the contentions presented, we will not recite them except as

necessary to the discussion. Xin Shui Liu, a native and citizen of China, petitions this

court to review an order of the Board of Immigration Appeals (“Board”) denying his

motion to reconsider an earlier Board determination resulting in a final removal order.

For the reasons that follow, we will deny the petition.

       Liu, who is married and has three children residing in China, entered the United

States without inspection on March 20, 1993. On May 19, 1993, Liu submitted an

application for asylum based on claims of past persecution and fear of future persecution

for violating China’s one-child family planning policy. After six hearings, the IJ denied

Liu’s application, determining that Liu had not supported his asylum claim with credible

testimony. The Board affirmed the IJ’s decision on March 3, 2003. Liu did not petition

for review of the Board’s order, but on March 24, 2003, he filed a motion to reconsider

with the Board. The Board denied the motion on June 20, 2003. Liu filed a timely

petition for review of the order denying the motion to reconsider.

       Liu’s brief before this court is mostly devoted to his contention that the IJ’s

credibility determination was not supported by substantial evidence. Liu’s petition for

review must be denied for two reasons. First, to the extent Liu seeks judicial review of

the Board’s March 3, 2003 final order of removal, we do not have jurisdiction to review

that order because Liu failed to file a petition for review within 30 days as required by 8

U.S.C. § 1252(b)(1). Second, Liu has not demonstrated that the Board abused its



                                              2
discretion in denying the motion to reconsider. See INS v. Doherty, 502 U.S. 314, 323

(1992) (holding that the Board’s denial of a motion to reopen is reviewed for abuse of

discretion).

       It is uncontroverted that Liu did not file a petition to review the Board’s March 3,

2003, order within 30 days of that order, as required by 8 U.S.C. § 1252(b)(1). The 30-

day filing period is “jurisdictional in nature and must be construed with strict fidelity to

[its] terms.” Stone v. INS, 514 U.S. 386, 405 (1995) (construing former 8 U.S.C. §

1105a(a)(1)). The filing of a motion to reconsider a final order of deportation does not

toll the 30-day period for seeking judicial review of the underlying order and does not

render the underlying order non-final. Id. at 394. Because Liu failed to meet the 30-day

filing period, we do not have jurisdiction to review the Board’s M arch 3, 2003 order.

See Nocon v. INS, 789 F.2d 1028, 1032-1033 (3d Cir. 1986). See also Zhao v. U.S.

Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001) (“Because we are precluded from passing

on the merits of the underlying exclusion proceedings, petitioner’s assertions that he

received no due process at his hearing and that the immigration judge’s credibility

determination was not based on substantial evidence are not before us.”).

       With respect to Liu’s petition for review of the Board’s denial of his motion to

reconsider, Liu has not shown that the Board abused its discretion in the June 20, 2003

order denying the motion. See Nocon, 789 F.2d at 1033. In his motion to reconsider, Liu

was required to “state the reasons for the motion by specifying the errors of fact or law in



                                              3
the prior Board decision” and support his contentions with “pertinent authority.”

Nascimento v. INS, 274 F.3d 26, 27 (1st Cir. 2001) (citing 8 C.F.R. § 3.2(b)(1) (2001)).

       Liu contends the Board abused its discretion in denying his motion to reconsider

because he had not been given a full chance to testify, the Board failed to give substantial

weight to his testimony, the Board discounted his documentary evidence for no reason,

the Board misunderstood China’s family planning policy and he had new evidence in

support of his claims. We reject each of these contentions.

       Liu was afforded a full and fair opportunity to be heard at six administrative

hearings before the IJ. At the final hearing, in which his application was denied, Liu

testified before the IJ and presented documentary evidence to support his testimony.

Liu’s contention that the IJ did not take his claims seriously and ignored his testimony is

not supported by the record. Although the IJ declined to admit some of Liu’s

documentary evidence, the IJ did so for well-substantiated reasons, including that Liu

failed to authenticate or establish a chain of custody for certain documents, Liu failed to

submit several documents in a timely fashion and some of the documents lacked clarity.

       Moreover, the record does not reflect any misunderstanding on the part of the IJ

regarding China’s birth control policy, rather it simply reflects the IJ’s belief that the

policy was not consistent with the claims made by Liu. Although it is consistent with

China’s family planning policy for a family to be fined after the birth of a second or third

child, it is not consistent with the policy for fines to again be levied years after the birth



                                               4
    has taken place. Moreover, the Fujian Province is known for being more relaxed in its

    enforcement of such policies.

           Finally, Liu failed to raise any new factual arguments in his motion to reconsider.

    Instead, he reiterated the same contentions he had outlined in his original appeal to the

    Board. As for the legal claims he raised, those were also already raised in his original

    appeal. Furthermore, Liu fails to provide any legal authority to support his claims and

    instead relies on conclusory statements that the Board erred as a matter of law. Such

    conclusory statements cannot satisfy his burden to establish that the Board abused its

    discretion in denying his motion to reconsider. See Nocon, 789 F.2d at 1033.

           We have considered all of the contentions raised by the parties and conclude that

    no further discussion is necessary.

1          The petition for review will be denied.




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