FILED
NOT FOR PUBLICATION NOV 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHAO HSIEN LEE, AKA Zhao Xian Li, No. 12-71094
AKA Zhao Xien Li,
Agency No. A070-170-176
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 23, 2015
Pasadena, California
Before: KOZINSKI, IKUTA, and OWENS, Circuit Judges.
Petitioner Zhao Hsien Lee appeals the denial of his motion to reopen in
absentia deportation proceedings. The Board of Immigration Appeals (BIA) held
that Lee’s motion was time- and number-barred under 8 C.F.R. § 1003.2(c)(2)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
because he could not establish changed country conditions. We have jurisdiction
under 8 U.S.C. § 1252.
We are precluded from addressing Lee’s claim because the issue was finally
decided in immigration proceedings that Lee initiated in New York for the same
purpose, under a separate alien registration number. See Oyeniran v. Holder, 672
F.3d 800, 806 (9th Cir. 2012) (holding that collateral estoppel applies in the
context of immigration proceedings); see also B & B Hardware, Inc. v. Hargis
Indus., Inc.,
135 S. Ct. 1293, 1302–04 (2015) (issue preclusion generally applies
when the same issue is before a court and a federal administrative agency).
The issue — whether Lee produced material evidence of a change in country
conditions so as to meet the requirements for reopening immigration proceedings
under 8 C.F.R. § 1003.2(c) — is identical in both proceedings because the BIA
considered the same evidence in both cases. See Oyeniran,
672 F.3d at 806.
This issue was actually litigated and decided in the prior proceedings. See
id. Further, the BIA’s decision became final after 30 days as a result of Lee’s
failure to pursue an appeal of the June 20, 2012 decision to the Second Circuit. See
8 U.S.C. § 1252(b)(1); see also Wehrli v. Cty. of Orange,
175 F.3d 692, 694 (9th
Cir. 1999) (stating that we accord preclusive effect to administrative proceedings
2
“where judicial review of the administrative adjudication was available but
unused”).
There was a full and fair opportunity to litigate the issue in New York,
where Lee filed the same motion to reopen with the BIA and had the same
opportunity to brief his claims. See Oyeniran, 672 F.3d at 806; see also Medina-
Lara v. Holder,
771 F.3d 1106, 1118–19 (9th Cir. 2014). Finally, the issue of
whether Lee established a change in country conditions was necessary to decide
the merits of his motion to reopen.
DISMISSED.
3
FILED
Lee v. Lynch, No. 12-71094 NOV 02 2015
MOLLY C. DWYER, CLERK
OWENS, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I would prefer to remand this petition to the BIA so it
can decide, in the first instance, whether preclusion is appropriate here.
