                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3697




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Yang v. Atty Gen USA" (2005). 2005 Decisions. Paper 399.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/399


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 04-3697
                                  ____________

                               YONG HUA YANG,

                                         Petitioner

                                        v.

               ATTORNEY GENERAL OF THE UNITED STATES,

                                        Respondent
                                  ____________

                          On Petition for Review from an
                     Order of the Board of Immigration Appeals
                             (Board No. A70-576-595)
                                   ____________

                    Submitted Under Third Circuit LAR 34.1(a)
                               September 22, 2005

                Before: ROTH, McKEE and FISHER, Circuit Judges.

                             (Filed: October 17, 2005)
                                  ____________

                            OPINION OF THE COURT
                                 ____________

FISHER, Circuit Judge.
       Yong Hua Yang petitions for review of the final order of the Board of Immigration

Appeals (“BIA”) denying his second motion to reopen proceedings. For the following

reasons, we will deny the petition.

                                             I.

       As we write only for the parties, we set forth only those facts necessary to our

analysis. Yang, a native and citizen of China, entered the United States without

inspection in October 1992. After being placed in deportation proceedings, Yang applied

for asylum. Yang was the only witness at his asylum hearing, and he testified through a

translator. The Immigration Judge denied the requested relief based on an adverse

credibility determination, and ordered Yang deported to China. The BIA affirmed the

Immigration Judge’s decision on April 10, 2002. Yang filed a motion to reopen and a

motion to reconsider, both of which the BIA denied. Yang did not seek judicial review of

any of these decisions of the BIA.

       On June 23, 2004, Yang filed a second motion to reopen with the BIA, raising for

the first time an allegation that his translator had mistranslated numerous statements,

questions, and answers by the Immigration Judge, the attorneys, and Yang. The BIA

denied the motion on August 18, 2004. Yang filed a timely petition for review with this

Court.1


       1
       The only order currently subject to our review is the order denying Yang’s second
motion to reopen. See Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986). Thus, we
cannot consider any argument that the Immigration Judge and the BIA wrongly denied

                                             2
                                             II.

       We review the BIA’s denial of a motion to reopen for abuse of discretion, with

“broad deference” to its decision. Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003). Under this standard, we will reverse the BIA’s decision only if it is “arbitrary,

irrational, or contrary to law.” Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).

                                            III.

       An alien may file only one motion to reopen, and it must be filed no later than

ninety days after the date on which the final administrative decision was rendered. 8

C.F.R. § 1003.2(c)(2). However, these “time and numerical limitations” do not apply to a

motion to reopen proceedings to apply for asylum based on changed circumstances

arising in the country of removal, “if such evidence is material and was not available and

could not have been discovered or presented at the previous hearing.” 8 C.F.R.

§ 1003.2(c)(3)(ii).

       In his motion, Yang did not argue that the proceedings in his case should be

reopened due to changed circumstances in China. Instead, Yang urged that his case be




Yang’s application for asylum. Yang’s brief argues that “the incompetent translation of
English and Foo Chowese [Yang’s native dialect] at Petitioner’s asylum hearing denied
him a full and fair hearing and a determination based on substantial evidence.” We can
consider this argument only to the extent that the alleged denial of a full and fair hearing
rendered the BIA’s decision to deny the second motion to reopen arbitrary and capricious,
and thus an abuse of discretion. See Nocon, 789 F.2d at 1033.

                                             3
reopened based on an allegation that he was denied a full and fair asylum hearing. Yang

also requested that the government join in his motion, but the government refused.

       The BIA noted that Yang’s motion to reopen was filed after the ninety-day period

provided by regulation and was his second motion to reopen, and would therefore be

barred unless it fell within an exception to the time and number limitations. Citing In re

J-J-, 21 I & N Dec. 976 (BIA 1997), the BIA recognized that it retained “limited

discretionary powers” to reopen or reconsider cases on its own motion, even where a

motion to reopen is time- or number-barred. The BIA further noted that this discretion

would be exercised only in “exceptional situations.” Id. at 984.

       The BIA analyzed the alleged errors in translation and concluded: first, that any

translation errors that occurred were immaterial; second, that Yang did not demonstrate

that the Immigration Judge had been influenced in his adverse credibility determination

by these alleged errors; and third, that Yang had failed to carry his burden of showing that

he was denied a fair hearing. Based on these conclusions, the BIA determined that Yang

had failed to establish exceptional circumstances justifying reopening the proceedings in

spite of the time and number bar.

       Based on our review of the record, these determinations were not arbitrary,

irrational, or contrary to law. The BIA therefore did not err in refusing to exercise its

discretion to reopen Yang’s proceeding.

                                             IV.



                                              4
      In sum, we find no basis to conclude that the BIA abused its discretion in denying

Yang’s second motion to reopen. Accordingly, we will deny the petition for review.




                                           5
