Xin Bao Weng v. United States Department of Justice ( 2011 )

10-3561-ag
Weng v. US DOJ
BIA
A073 053 313
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 18th day of November, two thousand eleven.
PRESENT:
ROGER J. MINER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_______________________________________
XIN BAO WENG,
Petitioner,
v. 10-3561-ag
NAC
UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES ATTORNEY GENERAL,
IMMIGRATION & NATURALIZATION SERVICE,
Respondents.
______________________________________
FOR PETITIONER: Cora J. Chang, New York, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; David V. Bernal, Assistant
Director; Lance L. Jolley, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Xin Bao Weng, a native and citizen of the
People's Republic of China, seeks review of an August 18,
2010, decision of the BIA denying his motion to reopen his
removal proceedings. In re Xin Bao Weng, No. A073 053 313
(B.I.A. Aug. 18, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of the
case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006)(per curiam). An alien seeking to reopen
proceedings is required to file a motion to reopen no later
than 90 days after the date on which the final
administrative decision was rendered and is permitted to
file only one such motion. 8 U.S.C. §
1229a(c)(7)(C)(i)(2006). There is no dispute that Weng’s
second motion to reopen, filed more than eight years after
the BIA affirmed the IJ’s denial of his asylum application,
was untimely and number-barred. See id.
The BIA did not err in concluding that Weng failed to
submit material evidence of changed country conditions as
required to warrant consideration of his untimely motion.
See 8 U.S.C. § 1229a(c)(7)(C)(ii)(2006). As the BIA found,
Weng made no claim that there had been a change in China
since his 1997 hearing regarding the treatment of
Christians. Although Weng now argues that “new and
previously unavailable evidence . . . show[s] changed
country conditions in China,” he fails to indicate the
evidence to which he is referring. Upon review of the
record, no such evidence is present. The evidentiary
materials that Weng submitted in connection with his motion
to reopen contain only passing references to the current
conditions in China for Christians and do not suggest that
conditions have materially changed. Accordingly, the BIA
did not abuse its discretion in finding that Weng’s new
practice of Christianity constituted only a change in
personal circumstances, which did not excuse the untimely
and number-barred filing of his motion. See Li Yong Zheng
v. U.S. Dep’t of Justice, 416 F.3d 129, 130—31 (2d Cir.
2005) (per curiam).
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In his brief to this Court, Weng mentions that his
motion to reopen was also premised on his eligibility to
apply for suspension of deportation, but he fails to
challenge the BIA’s dispositive determinations that he was
ineligible for suspension or that his new eligibility for
suspension would not excuse the time and number bars
applicable to his motion. We therefore deem waived any
challenge to the BIA’s denial of Weng’s motion to the extent
that it was based on Weng’s asserted eligibility for
suspension of deportation. See Yuqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2) and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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