Ri Hong Gao v. Mukasey

Second Circuit

Ri Hong Gao v. Mukasey

294 F. App'x 685

CourtCourt of Appeals for the Second Circuit

DecidedOctober 3, 2008

DocketNo. 07-5699-ag

StatusPublished

This text of 294 F. App'x 685 (Ri Hong Gao 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.

Bluebook

Ri Hong Gao v. Mukasey, 294 F. App'x 685 (2d Cir. 2008).

Pincite

Opinion

SUMMARY ORDER

Petitioner appeals the BIA’s denial of a motion to reopen for adjustment of status and subsequent denial of a motion to reconsider. We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.

We review the denial of a motion to reconsider for abuse of discretion, a standard met only if the BIA failed to offer a rational explanation, departed from established policies, lacked any reasoning, or was otherwise arbitrary or capricious. See Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005) (per curiam). The BIA was within its discretion to deny Petitioner’s motion to reconsider because Petitioner failed to allege any errors of law or fact in the underlying denial of the motion to reopen. See 8 U.S.C. § 1229a(c)(6)(C); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001) (“[A] motion for reconsideration must specify the errors of fact or law in the Board’s decision and be supported with pertinent authority.”).

We need not directly address the merits of Petitioner’s initial motion to reopen because Petitioner did not appeal immediately that denial but rather waited until the BIA denied reconsideration, at which time an appeal of the denial of the motion to reopen was no longer timely. Cf. Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Zhe Xin Zou v. Mukasey, 287 Fed.Appx. 138, 138 (2d Cir.2008) (unpublished summary order) (“[W]e treat each petition for review as challenging only the BIA decision from which it was timely filed.”).

We note in passing, however, that Petitioner’s underlying motion to reopen appears meritless. It was filed more than 90 days after the date of entry of the final order and thus was untimely, see 8 U.S.C. [687]*687§ 1229a(c)(7)(C); see also 8 C.F.R. § 1008.2(c)(2), and marriage is a changed personal circumstance that does not excuse the 90-day limit, see Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008); Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.2006) (“The law is clear that a petitioner must show changed country conditions in order to exceed the 90-day filing requirement for seeking to reopen removal proceedings. A self-induced change in personal circumstances cannot suffice.”) (citation omitted). We have considered all of Petitioner’s arguments and find them to be without merit. Accordingly, we DENY the petition for review.

Free access — add to your briefcase to read the full text and ask questions with AI

SUMMARY ORDER

Petitioner appeals the BIA’s denial of a motion to reopen for adjustment of status and subsequent denial of a motion to reconsider. We assume the parties’ familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.

We review the denial of a motion to reconsider for abuse of discretion, a standard met only if the BIA failed to offer a rational explanation, departed from established policies, lacked any reasoning, or was otherwise arbitrary or capricious. See Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005) (per curiam). The BIA was within its discretion to deny Petitioner’s motion to reconsider because Petitioner failed to allege any errors of law or fact in the underlying denial of the motion to reopen. See 8 U.S.C. § 1229a(c)(6)(C); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001) (“[A] motion for reconsideration must specify the errors of fact or law in the Board’s decision and be supported with pertinent authority.”).

We need not directly address the merits of Petitioner’s initial motion to reopen because Petitioner did not appeal immediately that denial but rather waited until the BIA denied reconsideration, at which time an appeal of the denial of the motion to reopen was no longer timely. Cf. Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Zhe Xin Zou v. Mukasey, 287 Fed.Appx. 138, 138 (2d Cir.2008) (unpublished summary order) (“[W]e treat each petition for review as challenging only the BIA decision from which it was timely filed.”).

We note in passing, however, that Petitioner’s underlying motion to reopen appears meritless. It was filed more than 90 days after the date of entry of the final order and thus was untimely, see 8 U.S.C. [687]*687§ 1229a(c)(7)(C); see also 8 C.F.R. § 1008.2(c)(2), and marriage is a changed personal circumstance that does not excuse the 90-day limit, see Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.2008); Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.2006) (“The law is clear that a petitioner must show changed country conditions in order to exceed the 90-day filing requirement for seeking to reopen removal proceedings. A self-induced change in personal circumstances cannot suffice.”) (citation omitted). We have considered all of Petitioner’s arguments and find them to be without merit. Accordingly, we DENY the petition for review.

Cite This Page — Counsel Stack

Bluebook (online)

294 F. App'x 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ri-hong-gao-v-mukasey-ca2-2008.

Opinion

Related

Cite This Page — Counsel Stack