         13-2465
         Huang v. Lynch
                                                                                       BIA
                                                                               A087 548 102
                               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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       JING HUANG,
14                Petitioner,
15
16                        v.                                    13-2465
17                                                              NAC
18
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,*
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Rakhvir Dhanoa, New York, New York.


                 *
              Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Loretta E. Lynch is automatically
         substituted for former Attorney General Eric H. Holder, Jr.,
         as the Respondent in this case.
 1
 2   FOR RESPONDENT:        Stuart F. Delery, Assistant Attorney
 3                          General; Stephen J. Flynn, Assistant
 4                          Director; Robert Michael Stalzer,
 5                          Trial Attorney, Office of
 6                          Immigration Litigation, Civil
 7                          Division, United States Department
 8                          of Justice, Washington, D.C.
 9
10       UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14       Petitioner Jing Huang, a native and citizen of the

15   People’s Republic of China, seeks review of a June 6, 2013,

16   decision of the BIA denying his motion to reopen.     In re

17   Jing Huang, No. A087 548 102 (B.I.A. June 6, 2013).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.   Because Huang’s

20   petition for review is timely only with respect to this

21   denial of reopening, we lack jurisdiction to consider his

22   challenges to evidentiary matters and the adequacy of his

23   counsel’s performance in the underlying proceedings, both of

24   which he failed to raise in his motion.   See 8 U.S.C. §

25   1252(b)(1) (30-day filing requirement for petitions for

26   review); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83,

27   89-90 (2d Cir. 2001) (explaining that petition timely filed

                                  2
 1   from denial of reconsideration does not bring up underlying

 2   removal order for review); Arango-Aradondo v. INS, 13 F.3d

 3   610, 614 (2d Cir. 1994) (requiring exhaustion of ineffective

 4   assistance claims before BIA as prudential matter).

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

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

 7   (2d Cir. 2006) (per curiam).     The BIA may deny reopening if

 8   the alien fails to demonstrate his prima facie eligibility

 9   for the underlying relief sought does not reasonably explain

10   his failure to timely file his asylum application, and does

11   not present new, previously unavailable material evidence.

12   See 8 U.S.C. § 1229a(c) (7)(B); 8 C.F.R. § 1003.2(c)(1); INS

13   v. Abudu, 485 U.S. 94, 104-05 (1988).

14       The BIA reasonably found that Huang’s evidence was not

15   material.     Huang requested reopening to supplement the

16   record with corroborating evidence the IJ excluded as

17   untimely filed, but did not submit that evidence with his

18   motion.     Rather, he submitted: (1) a psychological

19   evaluation stating that he suffered from depression (his

20   explanation for the late filing); (2) pre-hearing evidence

21   of the causes of his depression; and (3) purportedly new

22   evidence that corroborated his testimony that his parents’


                                     3
 1   corrupt landlord would force him to pay his parents’

 2   unsettled debt.

 3       As to the evidence regarding Huang’s depression, the

 4   BIA reasonably found it did not undermine the agency’s

 5   dispositive pretermission and adverse credibility rulings

 6   because it did not independently corroborate his claim for

 7   relief.    Moreover, the BIA reasonably rejected the

 8   evaluation as unreliable because it was created two years

 9   after the hearing and for the purpose of litigation.     See

10   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

11   Cir. 2006) (the weight to be accorded to documentary

12   evidence lies largely within the agency’s discretion); In re

13   H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (BIA 2010)

14   (affording diminished weight to unsworn letters created for

15   the purpose of litigation), rev’d on other grounds by Hui

16   Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

17       Similarly, the evidence regarding his parents’ landlord

18   did not directly relate to Huang’s claim regarding his

19   parents’ debt: they discussed the landlord and his

20   resignation and charges of corruption, but not Huang or his

21   parents.    And as the BIA noted, one article was undated and

22   therefore may have been previously available.    Because Huang


                                    4
 1   failed to demonstrate that his evidence was new or material,

 2   the BIA did not abuse its discretion in denying his motion

 3   to reopen.   See 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R.

 4   § 1003.2(c)(1); Abudu, 485 U.S. at 104-05.

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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