Jin Ming Liu v. Alberto R. Gonzales, 1 · 439 F.3d 109

explaining that 23 the Court was “precluded from passing on the merits of the underlying . . . 2 1 proceedings” where the petition was filed from the denial of reconsideration 2 (quotation marks and citation omitted)

How later courts described this case

explaining that 23 the Court was “precluded from passing on the merits of the underlying . . . 2 1 proceedings” where the petition was filed from the denial of reconsideration 2 (quotation marks and citation omitted)
observing that “we are precluded from passing on the merits of the underlying [removal] proceedings” where petitioner appeals only BIA’s denial of motion to reconsider and does not appeal agency’s underlying removal decision (internal quotation marks omitted)
holding that “[t]he BIA does not abuse its discretion by denying a motion to reconsider where the motion [merely] repeats arguments that the BIA has previously rejected.”
stating that the BIA “does not abuse its discretion by denying a motion to reconsider” when the motion merely “repeats arguments that the BIA has previously rejected”

Written by the judges who cited it.

The 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

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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);