Zhen-En Zheng v. Holder , 351 F. App'x 570 ( 2009 )

07-4839-ag
Zheng v. Holder
BIA
A074 234 472
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 BAI ZHENG,
15 Petitioner,
16
17 v. 07-4839-ag
18 NAC
19 UNITED STATES DEPARTMENT OF JUSTICE,
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL, *
22 Respondents.
23 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Acting Attorney General
Peter D. Keisler as a respondent in this case.
0 9 1 4 0 9 -2 3
1 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New
2 York.
3
4 FOR RESPONDENTS: Gregory G. Katsas, Assistant
5 Attorney General; Michelle G.
6 Latour, Assistant Director; Sunah
7 Lee, Trial Attorney, Office of
8 Immigration Litigation, United
9 States Department of Justice,
10 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 Bai Zheng, a native and citizen of the
17 People’s Republic of China, seeks review of an October 16,
18 2007 order of the BIA denying his motion to reopen. In re
19 Bai Zheng, No. A074 234 472 (B.I.A. Oct. 16, 2007). We
20 assume the parties’ familiarity with the underlying facts
21 and procedural history in this case.
22 We review the agency’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 agency considers relevant evidence of
25 country conditions in evaluating a motion to reopen, we
26 review the agency’s factual findings under the substantial
27 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
21 138, 169 (2d Cir. 2008).
2 The agency did not err in denying Zheng’s untimely
3 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also
4 8 C.F.R. § 1003.2(c)(2). Zheng argues that the BIA erred in
5 concluding that he failed to produce evidence demonstrating
6 either material changed country conditions sufficient to
7 excuse the untimely filing of his motion to reopen or his
8 prima facie eligibility for relief. However, we have
9 previously reviewed the BIA’s consideration of evidence
10 similar to that which Zheng submitted and have found no
11 error in its conclusion that such evidence is insufficient
12 to establish either material changed country conditions or a
13 reasonable possibility of persecution. See Jian Hui Shao,
14 546 F.3d at 169-73 (noting that “[w]e do not ourselves
15 attempt to resolve conflicts in record evidence, a task
16 largely within the discretion of the agency”); see also Wei
17 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting
18 that while the BIA must consider evidence such as “the oft-
19 cited Aird affidavit, which [it] is asked to consider time
20 and again[,] . . . it may do so in summary fashion without a
21 reviewing court presuming that it has abused its
22 discretion”).
3
1 The BIA’s determination that Zheng was ineligible to
2 file a successive asylum application was not in error. See
3 Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.
4 2008). Finally, we lack jurisdiction to consider Zheng’s
5 argument that the BIA abused its discretion by declining to
6 reopen his proceedings sua sponte. See Ali, 448 F.3d at7 518.
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
20 By:___________________________
4