Jun Lan Zhang v. Gonzales

Second Circuit

Jun Lan Zhang v. Gonzales

138 F. App'x 358

CourtCourt of Appeals for the Second Circuit

DecidedJune 29, 2005

DocketDocket No. 03-40123

StatusPublished

This text of 138 F. App'x 358 (Jun Lan Zhang v. Gonzales) 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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Jun Lan Zhang v. Gonzales, 138 F. App'x 358 (2d Cir. 2005).

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Opinion

Petitioner Jun Lan Zhang (“Zhang”) petitions for review of a June 6, 2003 order of the BIA, denying as untimely filed his motion to reopen the BIA’s prior November 8, 2002 decision affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal. Zhang, a citizen of the People’s Republic of China (“PRC”), claims that because he and his wife have had two children in the United States, born in 1999 and 2001, he and his wife will be sterilized or imprisoned pursuant to the PRC’s single child policy if he is returned to the PRC. We assume the parties’ familiarity with the facts and procedural history of the case.

Where the BIA has correctly applied the law, we review for abuse of discretion the BIA’s denial of a motion to reopen. Guan v. BIA 345 F.3d 47, 48 (2d Cir.2003) (per curiam); see also 8 C.F.R. § 3.2(a) (2003) (decision on motion to reconsider or to reopen committed to BIA’s discretion). We reject Zhang’s contention that the BIA “fail[ed] to consider application of the temporal exception” to 8 C.F.R. § 3.2(c)(2)’s 90-day time limitations period for filing motions to reopen, found in 8 C.F.R. § 3.2.(c)(3)(ii) (2003). Rather, the BIA correctly found that this exception to the limitations period was “not pertinent here.” The birth of Zhang’s two children prior to his asylum hearing before the IJ was manifestly not a “changed circumstance! ] arising in the country of nationali[359]*359ty or in the country to which deportation has been ordered” evidence of which “was not available and could not have been discovered or presented at the previous hearing,” 8 C.F.R § 3.2(c)(3)(ii) (2003).¹

We have considered Zhang’s remaining arguments and find them to be without merit. For the foregoing reasons, the petition for review is DENIED.

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Petitioner Jun Lan Zhang (“Zhang”) petitions for review of a June 6, 2003 order of the BIA, denying as untimely filed his motion to reopen the BIA’s prior November 8, 2002 decision affirming the Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal. Zhang, a citizen of the People’s Republic of China (“PRC”), claims that because he and his wife have had two children in the United States, born in 1999 and 2001, he and his wife will be sterilized or imprisoned pursuant to the PRC’s single child policy if he is returned to the PRC. We assume the parties’ familiarity with the facts and procedural history of the case.

Where the BIA has correctly applied the law, we review for abuse of discretion the BIA’s denial of a motion to reopen. Guan v. BIA 345 F.3d 47, 48 (2d Cir.2003) (per curiam); see also 8 C.F.R. § 3.2(a) (2003) (decision on motion to reconsider or to reopen committed to BIA’s discretion). We reject Zhang’s contention that the BIA “fail[ed] to consider application of the temporal exception” to 8 C.F.R. § 3.2(c)(2)’s 90-day time limitations period for filing motions to reopen, found in 8 C.F.R. § 3.2.(c)(3)(ii) (2003). Rather, the BIA correctly found that this exception to the limitations period was “not pertinent here.” The birth of Zhang’s two children prior to his asylum hearing before the IJ was manifestly not a “changed circumstance! ] arising in the country of nationali[359]*359ty or in the country to which deportation has been ordered” evidence of which “was not available and could not have been discovered or presented at the previous hearing,” 8 C.F.R § 3.2(c)(3)(ii) (2003).¹

We have considered Zhang’s remaining arguments and find them to be without merit. For the foregoing reasons, the petition for review is DENIED.

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138 F. App'x 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jun-lan-zhang-v-gonzales-ca2-2005.

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