Xin Neng Zhang v. Holder ( 2014 )

12-5048
Zhang v. Holder
BIA
A079 316 243/244/245/246
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 28th day of March, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 XIN NENG ZHANG, ET AL.,
14 Petitioners,
15
16 v. 12-5048
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONERS: Scott E. Bratton, Margaret Wong &
24 Associates Co., LPA, Cleveland,
25 Ohio.
26
27 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
28 General; Melissa Neiman-Kelting,
29 Senior Litigation Counsel; Jessica
30 A. Dawgert, Trial Attorney, Office
31 of Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioners Xin Neng Zhang, Chun Yin Pat, Chung Yat
6 Cheung, and Wai Ho Zhang, natives and citizens of China,
7 seek review of a November 21, 2012, decision of the BIA
8 denying their motion to reopen. In re Xin Neng Zhang, et
9 al., No. A079 316 243/244/245/246 (B.I.A. Nov. 21, 2012).
10 We assume the parties’ familiarity with the underlying facts
11 and procedural history of this case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion, mindful of the Supreme Court’s
14 admonition that such motions are “disfavored.” Ali v.
15 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
16 Doherty, 502 U.S. 314, 322-23 (1992)). We review the BIA’s
17 factual findings regarding country conditions under the
18 substantial evidence standard. See Jian Hui Shao v.
19 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
20 The BIA did not abuse its discretion in denying Zhang’s
21 motion to reopen as untimely and number barred as it was his
22 second motion and was filed more than six years after his
2
1 final order of removal. See 8 U.S.C. § 1229a(c)(7)(A),
2 (C)(I); 8 C.F.R. § 1003.2(c)(2). Although there are no time
3 or numerical limitations for filing a motion to reopen
4 “based on changed country conditions arising in the country
5 of nationality or the country to which removal has been
6 ordered, if such evidence is material and was not available
7 and would not have been discovered or presented at the
8 previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
9 also 8 C.F.R. § 1003.2(c)(3)(ii), Zhang has not established
10 any error in the BIA’s conclusion that there was no material
11 change in country conditions here.
12 First, Zhang’s apparent assistance to the United States
13 government is a change in personal circumstances that does
14 not excuse the time and number limitations. See Li Yong
15 Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d
16 Cir. 2005); Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d
17 Cir. 2006); see also Ali v. Mukasey, 524 F.3d 145, 150 (2d
18 Cir. 2008) (holding that exercise of "prosecutorial
19 discretion" was not subject to judicial review, absent a
20 constitutional claim or question of law); Young Dong Kim v.
21 Holder, No. 12-1626, 2013 WL 6576520 (7th Cir. Dec. 16,
22 2013). Second, as the BIA reasonably determined, Zhang
23 failed to establish a material change in country conditions,
3
1 since the time of his hearing. Indeed, State Department
2 reports in the record for 2000 (submitted with Zhang's
3 original application) and 2010 (submitted with his motion to
4 reopen) showed that country conditions had not materially
5 changed. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253
6 (BIA 2007)(“In determining whether evidence accompanying a
7 motion to reopen demonstrates a material change in country
8 conditions that would justify reopening, [the BIA]
9 compare[s] the evidence of country conditions submitted with
10 the motion to those that existed at the time of the merits
11 hearing below.”); see also Norani v. Gonzales, 451 F.3d 292,
12 294 (2d Cir. 2006) (per curiam) (considering whether
13 evidence in support of reopening demonstrated a change since
14 the hearing below).
15 Accordingly, the BIA did not abuse its discretion in
16 denying Zhang’s motion to reopen as untimely and number
17 barred. See 8 U.S.C. § 1229a(c)(7)(A), (c). Because the
18 BIA’s denial as untimely and number barred is dispositive,
19 we do not reach Zhang’s arguments regarding his prima facie
20 eligibility for relief.
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1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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