07-5035-ag (L); 08-3877-ag (Con)
Dong v. Holder
                                                                                BIA
                                                                           Weisel, IJ
                                                                        A098 413 257
                        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.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 31 st day of August, two thousand ten.

PRESENT: DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         PIERRE N. LEVAL,
              Circuit Judges.
_________________________________________

JUHUA DONG,
         Petitioner,
                                                            07-5035-ag (L);
                    v.                                     08-3877-ag (Con)
                                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
         Respondent.
_________________________________________

FOR PETITIONER:                     Theodore N. Cox, New York, New York.


         *
      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 as respondent in this case.

051710-20
FOR RESPONDENT:               Michael F. Hertz, Acting Assistant
                              Attorney General; David V. Bernal,
                              Assistant Director; Jesse M. Bless,
                              Trial Attorney, Office of Immigration
                              Litigation, United States Department
                              of Justice, Washington, D.C.

        UPON DUE CONSIDERATION of these petitions for review of

two Board of Immigration Appeals (“BIA”) decisions, it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for

review are DENIED.

        Petitioner   Juhua   Dong,    a    native     and     citizen      of    the

People’s Republic of China, seeks review of: (1) a November 2,

2007 order of the BIA, reversing the June 22, 2005 decision of

Immigration     Judge   (“IJ”)   Robert         D.   Weisel      insofar    as    it

pretermitted     her    application       for    asylum     as     untimely      and

affirming     the    IJ’s    decision      insofar     as     it    denied       her

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”), In re Juhua

Dong, A098 413 257 (B.I.A. Nov. 2, 2007), aff’g No. A098 413

257 (Immig. Ct. N.Y. City June 22, 2005); (2) a November 2,

2007 order of the BIA denying her motion to reopen, In re

Juhua Dong, A098 413 257 (B.I.A. Nov. 2, 2007); and (3) a July

23, 2008 order of the BIA denying her motion to reconsider, In

re Juhua Dong, No. A098 413 257 (B.I.A. July 23, 2008).                           We

assume the parties’ familiarity with the underlying facts and

051710-20                            -2-
procedural history in this case.

        When the BIA issues an independent decision on remand, we

review the BIA’s decision alone.                 See Belortaja v. Gonzales,

484 F.3d 619, 622-23 (2d Cir. 2007).                   We review the agency’s

factual findings under the substantial evidence standard.                        8

U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d

90, 95 (2d Cir. 2008).           We review the BIA’s denial of a motion

to reopen or reconsider for abuse of discretion.                     See Kaur v.

BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam); Jin Ming

Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir. 2006).                        When the

BIA     considers     relevant    evidence       of    country   conditions     in

evaluating a motion, we review the BIA’s factual findings

under the substantial evidence standard.                  See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

        The BIA did not err in finding that the evidence in

support of Dong’s application for relief from removal did not

establish      that    she   has     a    well-founded        fear   of     forced

sterilization based on the birth of her U.S. citizen children.

We     have   previously     reviewed          the    BIA’s   consideration     of

evidence similar to that which Dong submitted and have found

no error in its conclusion that such evidence is insufficient

to establish an objectively reasonable fear of persecution.

See Jian Hui Shao, 546 F.3d at 156-65.


051710-20                                -3-
        Likewise, the BIA did not err in denying Dong’s motion to

reopen.     Contrary to Dong’s assertion that the BIA erroneously

required     her   to   satisfy   a   heightened   burden   of   proof   in

support of her motion, the BIA did not err in declining to

consider her previously available evidence, see INS v. Abudu,

485 U.S. 94, 104-05 (1988), and reasonably concluded that her

previously unavailable evidence was not material to her motion

because it would not support her ultimate claim of a well-

founded fear of forced sterilization, see Jian Hui Shao, 546

F.3d at 168-72; see also Matter of S-Y-G-, 24 I & N Dec. 247,

251 (BIA 2007) (recognizing that a movant “must meet the heavy

burden of showing that if proceedings before the immigration

judge were reopened, . . . the new evidence offered would

likely change the result in the case”) (internal quotation

marks omitted).         Insofar as Dong argues that her due process

rights were violated by the BIA’s reliance on mistranslated

country conditions evidence to deny her motion to reopen, she

has no due process right in seeking a discretionary grant of

a motion to reopen.         Cf. Yuen Jin v. Mukasey, 538 F.3d 143,

156-57 (2d Cir. 2008) (holding that “an alien who has already

filed one asylum application, been adjudicated removable and

ordered deported, and who has nevertheless remained in the

country illegally for several years, does not have a liberty


051710-20                             -4-
or property interest in a discretionary grant of asylum”).

        Because Dong does not sufficiently challenge the BIA’s

dispositive determination that her motion to reconsider was

untimely,           we    decline   to   review     the    BIA’s    denial     of   that

motion.           See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,

545 n.7 (2d Cir. 2005).

        For the foregoing reasons, the petitions for review are

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

that        the    Court       previously    granted      in   these   petitions      is

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

petitions is DISMISSED as moot.                    Any pending request for oral

argument          in     these   petitions    is    DENIED     in   accordance      with

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

Circuit Local Rule 34.1(b).

                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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