Zi Qiang Zheng v. Holder , 447 F. App'x 263 ( 2012 )

10-4192-ag
Zheng v. Holder
BIA
A070 651 174
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 5th day of January, two thousand twelve.
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 ZI QIANG ZHENG,
14 Petitioner,
15
16 v. 10-4192-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Zi Qiang Zheng, pro se, New York, NY
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Mary Jane Candaux,
27 Assistant Director; Laura M.L.
28 Maroldy, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Zi Qiang Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of the September
7 15, 2010, decision of the BIA denying his motion to reopen.
8 In re Zi Qiang Zheng, No. A070 651 174 (B.I.A. Sept. 15,
9 2010). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 Because Zheng has petitioned for review from the denial
12 of his 2010 motion, we review only the BIA’s 2010 decision
13 and do not address Zheng’s family planning claims, as they
14 were raised in a prior motion to reopen. 8 U.S.C.
15 § 1252(d)(1); Foster v. INS, 376 F.3d 75, 77 (2d Cir. 2004);
16 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90
17 (2d Cir. 2001). We review the BIA’s denial of Zheng’s 2010
18 motion to reopen for abuse of discretion. Ali v. Gonzales,
19 448 F.3d 515, 517 (2d Cir. 2006). A petitioner may file one
20 motion to reopen, which, generally, must be filed no later
21 than 90 days after the date on which the final
22 administrative decision has been rendered in the proceedings
2
1 sought to be reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8
2 C.F.R. § 1003.2(c)(2). There is no dispute that Zheng’s
3 2010 motion was untimely and number-barred, as the
4 immigration court’s final order was issued in 1999, and the
5 2010 motion was Zheng’s second motion to reopen. See 8
6 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2).
7 However, the time and number limitations do not apply to a
8 motion to reopen if it is “based on changed circumstances
9 arising in the country of nationality or in the country to
10 which deportation has been ordered, if such evidence is
11 material and was not available and could not have been
12 discovered or presented at the previous hearing.” 8 C.F.R.
13 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
14 Here, the BIA reasonably concluded that Zheng failed to
15 establish changed country conditions. As the BIA found,
16 Zheng failed to provide any evidence of the treatment of
17 Christians at the time of his 1999 hearing. See Matter of
18 S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). Although
19 Zheng now contends that the BIA abused its discretion by not
20 “addressing all the factors relevant to his claim” and by
21 not considering country conditions evidence he submitted, he
22 does not indicate the evidence to which he is referring.
3
1 Moreover, contrary to Zheng’s argument, the record does not
2 demonstrate that the BIA failed to consider any of the
3 evidence he submitted. See Jian Hui Shao v. Mukasey, 546
4 F.3d 138, 169 (2d Cir. 2008). Accordingly, because Zheng
5 failed to establish changed country conditions in China
6 sufficient to excuse the untimely filing of his motion to
7 reopen, his assertion that he would be able to demonstrate
8 his eligibility for the underlying relief is unavailing.
9 Contrary to Zheng’s contention, the BIA did not abuse its
10 discretion in declining to consider Zheng’s successive
11 asylum application, as a showing of changed country
12 conditions was a prerequisite to reopening. As the BIA
13 found, Zheng’s change in personal circumstances, which
14 materially affected his eligibility for asylum, did not
15 exempt him from having to demonstrate changed country
16 conditions. See Yuen Jin v. Mukasey, 538 F.3d 143, 152 (2d
17 Cir. 2008); Matter of C-W-L-, 24 I. & N. Dec. 346, 351
18 (B.I.A. 2007).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
4
1 this petition is DISMISSED as moot. Any pending request for
2 oral argument in this petition is DENIED in accordance with
3 Federal Rule of Appellate Procedure 34(a)(2), and Second
4 Circuit Local Rule 34.1(b).
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
5