Jin Ming LIU, Petitioner, v. Alberto R. GONZALES, Respondent

United States Court of Appeals for the Second Circuit2006-02-21No. Docket No. 04-6127 AG

439 F.3d 109

Summary · law.co

Holding. The petition for review is denied and the decision of the Board of Immigration Appeals is affirmed.

Jin Ming Liu, a Chinese citizen, sought review of the Board of Immigration Appeals' denial of his motion to reconsider an earlier decision that rejected his asylum claims based on religious persecution and China's family planning policies. Liu argued that changed circumstances—specifically the birth of his three children—warranted reconsideration of his case. However, the court's review was limited to whether the BIA abused its discretion in denying the motion to reconsider, not to the merits of the underlying asylum application itself.

The court found no abuse of discretion by the BIA. Liu's motion for reconsideration merely reiterated arguments about the merits of his asylum claim without demonstrating how the BIA had erred in its prior decision. Under governing law, a motion to reconsider must identify specific errors of fact or law in the prior decision and cannot simply replay arguments the BIA has already rejected. Because Liu's submission fell short of these requirements, the BIA properly denied his motion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Scope of review for a motion to reconsider versus review of underlying asylum merits
Standards for abuse of discretion in denying motions to reconsider
Whether changed personal circumstances (birth of children) warrant reconsideration when arguments repeat prior submissions

Procedural posture

Liu petitioned for review of the BIA's October 2004 denial of his motion to reconsider, which followed the BIA's July 2004 affirmance of an immigration judge's order denying his asylum and related relief requests and ordering his removal to China.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

Jin Ming Liu, a citizen of China, petitions for review of the October 2004 denial by the Board of Immigration Appeals (“BIA”) of his motion to reconsider the BIA’s July 2004 order that affirmed without opinion an order of an immigration judge (“IJ”) that (1) denied his requests for asylum, withholding of removal, and relief pursuant to the Convention Against Torture, and (2) directed his removal to China. According to Liu’s asylum application, he fled China to escape compulsory family planning and persecution on account of his Catholic faith. Liu’s petition contends that the BIA erred because there are “new facts” and because the birth of his three children “constitutes a change in [his] circumstances such that he is at risk of persecution under China’s coercive population planning policy if he returns to that country.”

Liu and the government both ask us to review the merits of Liu’s asylum claim and the IJ’s adverse credibility determination based on the substantial evidence standard. However, Liu did not petition this Court for review of the BIA’s July 2004 summary affirmance, but rather of the BIA’s October 2004 denial of his motion to reconsider. Our review is, therefore, limited to the BIA’s denial of Liu’s motion to reconsider his asylum application; accordingly, we are “ ‘precluded from passing on the merits of the underlying exclusion proceedings.’ ” Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam) (quoting Zhao v. DOJ, 265 F.3d 83, 90 (2d Cir.2001)).

The BIA’s denial of a motion to reconsider is reviewed for abuse of discretion. See Kaur, 413 F.3d at 233. An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner.” Id. at 233-34 (quoting Zhao, 265 F.3d at 93). A motion for reconsideration “is a request that the Board reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” In re Cerna, 20 I. & N. Dec. 399, 403 n. 2 (BIA 1991) (internal quotation marks omitted); see also Zhang v. INS, 348 F.3d 289, 293 (1st Cir. 2003). As such, it “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).

Here, however, Liu dilates on the merits of his- asylum claim without explaining how the BIA abused its discretion in denying his motion. The BIA does not abuse its discretion by denying a motion to reconsider where the motion repeats arguments that the BIA has previously rejected. See Strato v. Ashcroft, 388 F.3d 651, 655 (8th Cir.2004); Ahmed v. Ashcroft, 388 F.3d 247, 250-51 (7th Cir.2004); Sswajje v. Ashcroft, 350 F.3d 528, 533 (6th Cir.2003).

We have considered all of petitioner’s arguments and found each of them to be without merit. Accordingly, the petition for review is hereby DENIED and the decision of the Board of Immigration Appeals is hereby Affirmed.