Zhong Song Zhou v. Holder , 351 F. App'x 564 ( 2009 )

08-2270-ag (L); 08-4846-ag (Con)
Zheng v. Holder
BIA
A077 297 073
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
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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 24 th day of November, two thousand nine.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 QIN ZHENG,
14 Petitioner,
15
16 v. 08-2270-ag (L);
17 08-4846-ag (Con)
18 NAC
19 ERIC H. HOLDER, JR., 1 ATTORNEY GENERAL
20 OF THE UNITED STATES,
21 Respondent.
22 _______________________________________
1
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.
1 FOR PETITIONER: Jay Ho Lee, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Assistant Attorney
4 General; Ernesto H. Molina, Jr.,
5 Assistant Director; Tracey N.
6 McDonald, Trial Attorney, Office of
7 Immigration Litigation, United
8 States Department of Justice,
9 Washington, D.C.
10
11 UPON DUE CONSIDERATION of these consolidated petitions
12 for review of two Board of Immigration Appeals (“BIA”)
13 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
14 the petitions for review are DENIED.
15 Petitioner Qin Zheng, a native and citizen of the
16 People’s Republic of China, seeks review of: (1) the April
17 14, 2008 order of the BIA denying her first untimely motion
18 to reopen, In re Qin Zheng, No. A077 297 073 (B.I.A. Apr.
19 14, 2008); and (2) the September 5, 2008 order of the BIA
20 denying her second untimely motion to reopen, In re Qin
21 Zheng, No. A077 297 073 (B.I.A. Sept. 5, 2008). We assume
22 the parties’ familiarity with the underlying facts and
23 procedural history in this case.
24 We review the BIA’s denial of motions to reopen for
25 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
26 Cir. 2005) (per curiam). However, when the BIA reviews
27 evidence of country conditions submitted with a motion to
2
1 reopen, we review its findings for substantial evidence.
2 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.
3 2008).
4 There is no dispute that Zheng’s first motion to reopen
5 was untimely and that her second motion to reopen was both
6 untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2)
7 (providing that an alien seeking to reopen proceedings may
8 file one motion to reopen no later than 90 days after the
9 date on which the final administrative decision was
10 rendered). However, there are no time and number
11 limitations for filing a motion to reopen if it is “based on
12 changed circumstances arising in the country of nationality
13 or in the country to which deportation has been ordered, if
14 such evidence is material and was not available and could
15 not have been discovered or presented at the previous
16 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
17 I. Dkt. No. 08-2270-ag (L)
18 The BIA did not abuse its discretion in denying Zheng’s
19 first motion to reopen because it reasonably found that she
20 failed to proffer material evidence of changed country
21 conditions in support of that motion. Contrary to Zheng’s
22 arguments, in evaluating the evidence that she submitted,
23 the BIA did not err in failing to specifically discuss: (1)
24 unauthenticated letters from her mother and a friend; and
3
1 (2) unattributed reports in newspaper articles; and (3) her
2 own affidavit. Although “IJs and the BIA have a duty to
3 explicitly consider any country conditions evidence
4 submitted by an applicant that materially bears on [her]
5 claim,” Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir.
6 2007), the Court presumes that the agency has considered the
7 evidence unless the record compellingly suggests otherwise,
8 see Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 336
9 n.17 (2d Cir. 2006).
10 We are not compelled to conclude that the BIA ignored
11 Zheng’s arguments or evidence. To the contrary, we have
12 previously reviewed the BIA’s consideration of the same or
13 similar evidence and have found no error in its conclusion
14 that such evidence was insufficient to establish either
15 materially changed country conditions or an objectively
16 reasonable fear of persecution. See Jian Hui Shao, 546 F.3d
17 at 169-72 (noting that “[w]e do not ourselves attempt to
18 resolve conflicts in record evidence, a task largely within
19 the discretion of the agency”).
20 Ultimately, because the BIA did not err in finding that
21 Zheng failed to submit material evidence demonstrating a
22 change in country conditions, it did not abuse its
23 discretion in denying her first untimely motion to reopen.
4
1 See U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
2 § 1003.2(c)(1).
3 II. Dkt. No. 08-4846-ag (Con)
4 The BIA also did not abuse its discretion in denying
5 Zheng’s second untimely motion to reopen because, again, it
6 reasonably found that she failed to proffer material
7 evidence in support of that motion. Contrary to Zheng’s
8 arguments, in evaluating the evidence that she submitted,
9 the BIA applied the correct standard as outlined in 8 C.F.R.
10 § 1003.2(c)(3)(ii). Moreover, the BIA reasonably found that
11 Zheng failed to show that the family planning policy had
12 changed with respect to forcible IUD insertions. Id.
13 For the foregoing reasons, these consolidated petitions
14 for review are DENIED. As we have completed our review, any
15 stay of removal that the Court previously granted in these
16 petitions is VACATED, and any pending motion for a stay of
17 removal in these petitions is DISMISSED as moot. Any pending
18 request for oral argument in these petitions is DENIED in
19 accordance with Federal Rule of Appellate Procedure
20 34(a)(2), and Second Circuit Local Rule 34(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24 By:___________________________
5