         12-5067
         Yang v. Holder
                                                                                        BIA
                                                                                A099 532 376
                           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 19th day of September, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       JIAN XIN YANG,
14                 Petitioner,
15
16                        v.                                       12-5067
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Eric Y. Zheng, New York, NY.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; Derek C. Julius,
27                                      Senior Litigation Counsel; Theo
28                                      Nickerson, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Jian Xin Yang, a native and citizen of the

 6   People’s Republic of China, seeks review of the November 30,

 7   2012, order of the BIA denying his motion to reopen.     In re

 8   Jian Xin Yang, No. A099 532 376 (B.I.A. Nov. 30, 2012).     We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

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

12   abuse of discretion, remaining mindful of the Supreme

13   Court’s admonition that motions to reopen are “disfavored.”

14   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)

15   (quoting INS v. Doherty, 502 U.S. 314, 322-23 (1992)).

16   There are at least three independent grounds upon which the

17   BIA may deny a motion to reopen: (1) failure to establish a

18   prima facie case for the relief sought; (2) failure to

19   provide previously unavailable, material evidence; and

20   (3) a determination that, even if the first two requirements

21   were met, the alien would not be entitled to the relief as a

22   matter of discretion.   See Doherty, 502 U.S. at 323.


                                   2
 1   Furthermore, “[i]f the Attorney General determines that an

 2   alien has knowingly made a frivolous application for asylum

 3   and the alien has received [] notice . . . the alien shall

 4   be permanently ineligible for any benefits under [the

 5   Immigration and Nationality Act], effective as of the date

 6   of a final determination on such application.”      8 U.S.C.

 7   § 1158(d)(6); see Biao Yang v. Gonzales, 496 F.3d 268, 275

 8   (2d Cir. 2007) (“an [IJ’s] specific finding that [an

 9   applicant] deliberately fabricated a material element of his

10   asylum claim constitutes a finding that he knowingly filed a

11   frivolous asylum application”).

12       In this case, Yang received both written and oral

13   notice of the consequences of filing a frivolous application

14   for asylum, and was provided an opportunity to discuss the

15   issue with his attorney.   In her decision, the IJ stated

16   that her frivolous finding was based on Yang’s “deliberate"

17   act of including material false statements in his asylum

18   application.   See Biao Yang, 496 F.3d at 276-77.     The BIA

19   affirmed the IJ’s frivolous finding in 2009 and Yang did not

20   petition this Court for review of that decision; thus the

21   frivolous filing finding became final.   Accordingly, Yang is

22   permanently ineligible for asylum, and therefore unable to


                                   3
 1   demonstrate his prima facie eligibility for such relief, as

 2   is necessary to reopen proceedings.   See 8 U.S.C.

 3   § 1158(d)(6); Biao Yang, 496 F.3d at 274.

 4       Importantly, while the frivolous finding does not bar

 5   Yang from establishing his eligibility for withholding of

 6   removal or CAT relief, see Biao Yang, 496 F.3d at 274 n.2,

 7   asylum is the only relief Yang sought in his motion to

 8   reopen.   Yang does not argue, either in his motion to reopen

 9   or to this Court, that he meets the “more likely than not”

10   standard for either withholding of removal or CAT relief,

11   and asserts only that he has made out a prima facie case

12   because there is a “realistic chance he could demonstrate at

13   least a ten percent chance of persecution.”     In addition,

14   Yang’s contention that the BIA cited the frivolous finding

15   only to deny reopening under its sua sponte authority is

16   without merit, as the language of the statute clearly states

17   that an alien “shall be permanently ineligible for any

18   [asylum] benefits.”   8 U.S.C. § 1158(d)(6).   Thus, because

19   the agency may deny reopening if the applicant fails to

20   demonstrate prima facie eligibility for the relief sought,

21   and in this case Yang is ineligible for such relief, the BIA

22   did not abuse its discretion in denying his motion to

23   reopen.

                                   4
 1       For the foregoing reasons, the petition for review is

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

 3   removal that the Court previously granted in this petition

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

 5   this petition is DENIED as moot.    Any pending request for

 6   oral argument in this petition is DENIED in accordance with

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

 8   Circuit Local Rule 34.1(b).

 9                                 FOR THE COURT:
10                                 Catherine O’Hagan Wolfe, Clerk
11
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