Fang Yi He v. Mukasey

Second Circuit

Fang Yi He v. Mukasey

295 F. App'x 435

CourtCourt of Appeals for the Second Circuit

DecidedOctober 7, 2008

DocketNo. 07-4572-ag

StatusPublished

This text of 295 F. App'x 435 (Fang Yi He v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fang Yi He v. Mukasey, 295 F. App'x 435 (2d Cir. 2008).

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SUMMARY ORDER

Petitioner Fang Yi He seeks review of a BIA order denying his motion to reopen. We review that denial for abuse of discretion. See INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that discretionary denials of motions to reopen are reviewed only for abuse of that discretion); see also 8 C.F.R. § 1003.2(a).

At the outset, we note that Petitioner argues that he should be permitted [436]*436to file a successive asylum application on the basis of changed personal circumstances without having to meet the requirements for motions to reopen. This argument, however, is foreclosed by our recent opinion in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008).

As to his motion to reopen, Petitioner has not shown that the BIA abused its discretion in denying it. In its February 2007 decision, the BIA noted that it, “like the Immigration Judge,” it was “not inclined to favorably exercise [its] broad discretion” in Petitioner’s case because he “was granted the privilege of voluntary departure, remained in the United States in violation of that order, and accumulated his positive equities [ie., the children] several years after his alternate order of deportation became final.”

Because we conclude that Petitioner has not shown reversible error in the denial of his motion to reopen, we need not consider whether he would be prima facie eligible for asylum and withholding of removal. We have considered all of Petitioner’s remaining arguments and found them to be without merit. Accordingly, we DENY the petition for review.

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SUMMARY ORDER

Petitioner Fang Yi He seeks review of a BIA order denying his motion to reopen. We review that denial for abuse of discretion. See INS v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (holding that discretionary denials of motions to reopen are reviewed only for abuse of that discretion); see also 8 C.F.R. § 1003.2(a).

At the outset, we note that Petitioner argues that he should be permitted [436]*436to file a successive asylum application on the basis of changed personal circumstances without having to meet the requirements for motions to reopen. This argument, however, is foreclosed by our recent opinion in Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008).

As to his motion to reopen, Petitioner has not shown that the BIA abused its discretion in denying it. In its February 2007 decision, the BIA noted that it, “like the Immigration Judge,” it was “not inclined to favorably exercise [its] broad discretion” in Petitioner’s case because he “was granted the privilege of voluntary departure, remained in the United States in violation of that order, and accumulated his positive equities [ie., the children] several years after his alternate order of deportation became final.”

Because we conclude that Petitioner has not shown reversible error in the denial of his motion to reopen, we need not consider whether he would be prima facie eligible for asylum and withholding of removal. We have considered all of Petitioner’s remaining arguments and found them to be without merit. Accordingly, we DENY the petition for review.

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