Yu Rong Zhu v. Holder , 351 F. App'x 556 ( 2009 )

07-5454-ag
Zeng v. Holder
BIA
A029 793 777
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19 th day of November, two thousand nine.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON. O. NEWMAN,
10 PIERRE N. LEVAL,
11 Circuit Judges.
12 _________________________________________
13
14 SHI MING ZENG,
15 Petitioner,
16
17 v. 07-5454-ag
18 NAC
19 ERIC H. HOLDER, JR., * UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Yuming Wang, Wynnewood,
2 Pennsylvania.
3
4 FOR RESPONDENT: Gregory G. Katsas, Assistant
5 Attorney General; M. Jocelyn Lopez
6 Wright, Assistant Director; Yamileth
7 G. Handuber, Trial Attorney; Office
8 of Immigration Litigation, Civil
9 Division, United States Department
10 of Justice, Washington, D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED, that the petition for review
15 is DENIED.
16 Petitioner Shi Ming Zeng, a native and citizen of the
17 People’s Republic of China, seeks review of a November 8,
18 2007 order of the BIA denying his motion to reopen. In re
19 Shi Ming Zeng, No. A029 793 777 (B.I.A. Nov. 8, 2007). We
20 assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 We review the BIA’s denial of a motion to reopen for
23 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
24 Cir. 2006). When the BIA considers relevant evidence of
25 country conditions in evaluating a motion to reopen, we
26 review the BIA’s factual findings under the substantial
27 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
28 138, 169 (2d Cir. 2008).
29 The BIA did not err in denying Zeng’s untimely motion
2
1 to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.
2 § 1003.2(c)(2). Zeng argues that the BIA erred in
3 concluding that he failed to produce evidence demonstrating
4 either material changed country conditions sufficient to
5 excuse the untimely filing of his motion to reopen or his
6 prima facie eligibility for relief from deportation.
7 However, these arguments fail because we have previously
8 reviewed the BIA’s consideration of evidence similar to that
9 which Zeng submitted and have found no error in its
10 conclusion that such evidence is insufficient to establish
11 either material changed country conditions or a reasonable
12 possibility of persecution. See Jian Hui Shao, 546 F.3d at
13 169-72 (noting that “[w]e do not ourselves attempt to
14 resolve conflicts in record evidence, a task largely within
15 the discretion of the agency”); see also Wei Guang Wang v.
16 BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the
17 BIA must consider evidence such as “the oft-cited Aird
18 affidavit, which [it] is asked to consider time and again[,]
19 . . . it may do so in summary fashion without a reviewing
20 court presuming that it has abused its discretion”).
21 Moreover, contrary to Zeng’s argument, the BIA reasonably
22 found that his particularized evidence was not material
23 because it did not reference the forced sterilizations of
3
1 similarly situated individuals. See Jian Hui Shao, 546 F.3d
2 at 160-61. Even if, as Petitioner contends, the BIA was
3 mistaken in thinking that he had failed to submit the
4 original of the document from the Tinjiang Town Government,
5 any such error is harmless because the BIA reasonably
6 stated, “Even if we consider arguendo this document, he has
7 not demonstrated that the policy expressed within
8 constituted evidence of changed country conditions in the
9 absence of any evidence that the prior version of the law
10 was different, or differently enforced, in some relevant and
11 material way.” (BIA opinion at 3)
12 We lack jurisdiction to consider any argument that the
13 BIA abused its discretion in declining to reopen Zeng’s
14 proceedings sua sponte. See Ali, 448 F.3d at 518.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
21 Federal Rule of Appellate Procedure 34(a)(2), and Second
22 Circuit Local Rule 34(b).
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
25
26 By:___________________________
4