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Yang v. Gonzales: IMMIGATION - no jurisdiction regarding reopening denial; no abused denying reconsideration

1Michael B. Mukasey has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3010
___________
Bounty Lue Yang, **
Petitioner, *
* Petition for Review of a Final
v. * Decision of the Board
* of Immigration Appeals.
Michael B. Mukasey, Attorney General *
of the United States of America,1 *
*
Respondent. *
__________
Submitted: September 27, 2007
Filed: December 21, 2007
___________
Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
Bounty Lue Yang (Yang), a native and citizen of Laos, petitions this court for
review of the Board of Immigration Appealss (BIA) denial of his motion to
reconsider the BIAs prior denial of Yangs motion to reopen removal proceedings in
relation to his application for asylum, withholding of removal and protection under
2In obtaining his non-immigrant visa, Yang informed the American Embassy
he was married.
3Yang apparently did not receive notice of the denial of this application until
June 2003.
4Regarding the dissolution of his marriage to Thao, Yang testified she did not
love [him], [] did not allow [him] to go to school. She did not allow [him] to go to
work, learn how to drive and hid[] all [his] documentation and she torture[d] [him]
and when she [took] [him] to visit [his] relative, she left [him] there.
-2-
the Convention Against Torture (CAT). We dismiss in part and deny in part the
petition for review.
I. BACKGROUND
Yang testified he was born in Laos. In Laos, Yang married a Laotian woman
and had several children, all of whom remain in Laos. Yang testified he came by
himself to the United States through Los Angeles, California, in about October 2000.
Yang entered as a non-immigrant visitor with authorization to remain in this country
until March 2001, but he remained beyond that date without authorization.2
In March 2001, Yang married Phoua Thao (Thao), a United States citizen.
Thao filed a visa petition for an alien relative (Form I-130) to begin the process of
attaining legal status for Yang, but the visa petition was denied because Yang failed
to disclose his prior marriage. Yang also filed an application for adjustment of status,
but that application was denied as well.3 With respect to Yangs application for
adjustment of status, Thao submitted a letter declaring that: (1) Yang left Thao after
the application was filed; (2) after Thao married Yang, she learned Yang had a wife
and children in Laos; and (3) Thao withdrew her support on Yangs behalf. In
October 2002, Yangs marriage to Thao ended.4
-3-
In April 2003, Yang married Samantha Xiong (Xiong), another United States
citizen. In May 2003, the Department of Homeland Security (DHS) commenced
removal proceedings against Yang. In July 2003, Xiong filed a visa petition for an
immediate alien relative on Yangs behalf.
Meanwhile, removal proceedings against Yang continued and, on September
10, 2003, at a hearing before an Immigration Judge (IJ), Yang conceded removability
but sought asylum, withholding of removal, protection under the CAT, and voluntary
departure. On March 7, 2005, the IJ, finding Yangs testimony very contradictory,
issued an oral decision denying all of Yangs claims for relief, but granted Yang sixty
days for voluntary departure. Yang appealed to the BIA. On February 6, 2006, the
BIA affirmed the IJs decision in all respects and dismissed Yangs appeal. In doing
so, the BIA noted that while the respondents application for relief indicates that he
was a member of a guerilla resistance force [], the respondents testimony included
no reference to his involvement with this group. Yang never sought review of the
BIAs decision.
On April 3, 2006, Yang filed a motion to reopen, stating he would be applying
for adjustment of status based upon his marriage to a United States citizen. On April
10, 2006, the DHS issued a notice of intent to deny the visa petition previously filed
by Xiong on Yangs behalf. The notice indicated the visa petition contained unofficial
documentation regarding a marriage dissolution between Yang and his Laotian wife.
The notice made particular reference to a comment Xiong made during a followup
interview, when she stated she believed Yang was still married to his Laotian wife.
The notice specifically stated, Yang never obtained a legal divorce from his first
spouse. On May 9, 2006, the BIA denied Yangs motion to reopen because Yang
failed to provide an application for adjustment of status or sufficient
5By the time the BIA rendered its decision, in an effort to establish a bonafide
marriage, Xiong had already withdrawn the July 2003 visa petition filed on behalf of
Yang and filed a second relative immigrant visa petition on Yangs behalf.
-4-
evidence of a bonafide marriage.5 Yang did not seek judicial review of the BIAs May
9, 2006, decision.
On May 31, 2006, Yang filed a motion to reconsider the BIAs May 9, 2006,
denial of his motion to reopen. Because Yang submitted new evidence in support of
this motionincluding an adjustment of status application, several reference letters,
a house deed, as well as property tax, financial, and utility recordsthe BIA also
construed Yangs motion as a new motion to reopen. On July 11, 2006, finding no
legal or factual defects in its previous decision, the BIA denied Yangs motion to
reconsider. Also deeming Yangs submission as a motion to reopen because Yang
presented new evidence, the BIA further denied Yangs motion because a petitioner
is permitted only one motion to reopen (with certain exceptions not relevant to this
appeal). On August 8, 2006, arguing the BIA erred in denying his motion to
reconsider, Yang petitioned for review.
II. DISCUSSION
To the extent Yangs argument attempts to persuade us the BIAs May 9, 2006,
denial of his first motion to reopen is in error, we lack jurisdiction to review that
denial because Yang did not file a timely petition for review of that order. Yangs
appeal seeking judicial review was required to be filed within 30 days of the BIAs
May 9, 2006, decision. See 8 U.S.C. 1252(b)(1); De Jimenez v. Ashcroft, 370 F.3d
783, 788 (8th Cir. 2004) (concluding there was no jurisdiction to review a BIAs
denial of a motion to reopen where petitioner failed to appeal within thirty days); see
also Nava Mier Y Teran v. Gonzales, 168 F.Appx 868, 869 (10th Cir. 2006)
(concluding an appeal of an order by the BIA denying a motion to reopen was a final
order that had to be appealed within 30 days); Bronisz v. Ashcroft, 378 F.3d 632, 636
6We note that, although Yang does not challenge the BIAs initial order of
February 6, 2006, affirming the IJ, we would also lack jurisdiction to review that order
because Yang did not file a timely petition for review. 8 U.S.C. 1252(b)(1); see also
Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004).
-5-
(7th Cir. 2004) (stating the denial of a motion to reopen is a final order independently
subject to review like any other final order of deportation or removal); Zhang v. INS,
348 F.3d 289, 292 (1st Cir. 2003) (relating, all final BIA orders must be appealed to
this court within thirty days (citing 8 U.S.C. 1252(b)(1)). Yang did not file an
appeal until August 8, 2006. Thus, our jurisdiction is limited to review of the BIA
order denying Yangs motion to reconsider, a motion which the BIA also construed
as a motion to reopen because Yang submitted additional evidence.6 We review for
abuse of discretion. See Boudaguian v. Ashcroft, 376 F.3d 825, 827 (8th Cir. 2004).
A motion asking the BIA to reconsider an adverse decision shall specify the
errors of law or fact in the previous order and shall be supported by pertinent
authority. 8 U.S.C. 1229a(c)(6)(C); see Boudaguian, 376 F.3d at 827-28. In
reviewing the denial of a motion to reconsider, we will find an abuse of discretion if
the denial was made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis (such as race). Boudaguian,
376 F.3d at 828 (quoting Zhang, 348 F.3d at 293).
In his motion to reconsider, Yang did not identify what errors of fact or law, if
any, the BIA made in its decision denying Yangs petition to reopen. Yang only
submitted additional documentation attempting to prove a bonafide marriage. The
BIAs reason for denying Yangs motion to reconsider rests on the basis that Yang
failed to comply with the statutory standard required for a motion to reconsider. The
BIA did not abuse its discretion in denying Yangs motion to reconsider.
7We agree with the government that whether a motion to reopen/reconsider tolls
a voluntary departure period is now a moot issue because: (1) the BIA decided Yangs
motion on the merits, (2) the issue of whether voluntary departure was tolled during
the pendency of Yangs motion was not relevant to the BIAs decision, and (3) the
government does not contend Yang overstayed his voluntary departure period.
-6-
The BIA also construed Yangs motion to reconsider as a motion to reopen
because Yang submitted new documentation attempting to establish a bonafide
marriage with a United States citizen. Motions to reopen are disfavored, especially
in removal proceedings. Boudaguian, 376 F.3d at 828. If a motion to reopen is filed,
the motion shall state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other evidentiary material.
8 U.S.C. 1229a(c)(7)(B). There is, however, a limit in the number of motions to
reopen that may be filed. An alien may file one motion to reopen proceedings, with
certain exceptions not relevant here. See 8 U.S.C. 1229a(7)(A). When considering
Yangs motion as a motion to reopen, the BIA correctly stated Yangs motion was
numerically barred because the motion constituted Yangs second motion to reopen.7
III. CONCLUSION
Based on the foregoing, Yangs petition for review is (1) dismissed for lack of
jurisdiction to the extent Yang seeks review of the BIAs initial order and the BIAs
May 9, 2006, order denying Yangs first motion to reopen; and (2) denied to the
extent Yang seeks review of the BIAs order denying Yangs motion to reconsider and
second motion to reopen.
______________________________
 

 
 
 

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