Xiu Mei Li v. Holder , 351 F. App'x 575 ( 2009 )

07-4833-ag
Zheng v. Holder
BIA
A073 176 324
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 DENG DI ZHENG,
15 Petitioner,
16
17 v. 07-4833-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL, * UNITED STATES
21 DEPARTMENT OF JUSTICE,
22 Respondents.
23 _________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Alberto R. Gonzales as a respondent in this case.
0 9 1 4 0 9 -2 2
1 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New
2 York.
3
4 FOR RESPONDENTS: Jeffrey S. Bucholtz, Acting
5 Assistant Attorney General; M.
6 Jocelyn Lopez Wright, Assistant
7 Director; Eric W. Marsteller, Trial
8 Attorney, Office of Immigration
9 Litigation, 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 Deng Di 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 Deng Di Zheng, No. A073 176 324 (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
2
1 138, 169 (2d Cir. 2008).
2 The BIA did not err in denying Zheng’s untimely motion
3 to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.
4 § 1003.2(c)(2). Zheng argues that the BIA erred in finding
5 that he failed to produce evidence demonstrating material
6 changed country conditions sufficient to excuse the untimely
7 filing of his motion to reopen. However, we have previously
8 reviewed the BIA’s consideration of evidence similar to that
9 which Zheng 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
13 169-73 (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 The BIA’s determination that Zheng was ineligible to
22 file a successive asylum application was not in error. See
3
1 Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.
2 2008).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
13
14 By:___________________________
4