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De Ying Ni v. Board of Immigration Appeals
Citation: 166 F. App'x 502Docket: No. 04-0788-AG
Court: Court of Appeals for the Second Circuit; January 18, 2006; Federal Appellate Court
De Ying Ni's petition for review of the Board of Immigration Appeals (BIA) decision is centered on the denial of her motion to reopen and reconsider an earlier BIA order that affirmed an immigration judge's (IJ) denial of her asylum application, withholding of removal, and relief under the Convention Against Torture (CAT). The court reviews BIA's decisions for abuse of discretion. Ni's motion to reopen was filed 16 months after the BIA's dismissal of her appeal, exceeding the 90-day filing requirement. However, the BIA did not assess her evidence of changed country conditions or determine if it was new and material to her claim, which would have exempted her from the time limitations. This oversight constituted an abuse of discretion. Conversely, her motion to reconsider was also filed late, more than 16 months after the BIA's decision, thus falling outside the 30-day limit. The BIA's denial on this basis was within its discretion, as there are no exceptions to the timing for reconsideration motions. The court granted the petition in part and denied it in part. It vacated the BIA's decision regarding the motion to reopen but upheld the denial of the motion to reconsider. The case is remanded to the BIA for further proceedings aligned with this order. The court also vacated any previously granted stay of removal and denied any pending motion for a stay as moot, along with any oral argument requests.