Wen Lan Zeng v. Holder , 451 F. App'x 58 ( 2012 )

10-4345-ag
Zeng v. Holder
BIA
A095 369 354
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 26th day of January, two thousand twelve,
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RAYMOND J. LOHIER, JR.,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _______________________________________
13
14 WEN LAN ZENG,
15 Petitioner,
16
17 v. 10-4345-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of Michael
25 Brown, New York, N.Y.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Mark C. Walters, Senior
29 Litigation Counsel; Daniel I.
1 Smulow, Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
8 review is DENIED.
9 Wen Lan Zeng, a native and citizen of the People’s
10 Republic of China, seeks review of an October 5, 2010,
11 decision of the BIA denying her motion to reopen. In re Wen
12 Lan Zeng, No. A095 369 354 (B.I.A. Oct. 5, 2010). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of this case.
15 We review the BIA’s denial of Zeng’s motion to reopen
16 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
17 (2d Cir. 2006). As a general rule, an alien must file a
18 motion to reopen within 90 days of the agency’s final
19 administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i);
20 8 C.F.R. § 1003.2(c)(2). Although Zeng’s motion was
21 indisputably untimely because it was filed more than five
22 years after the agency’s final order of removal, see
23 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time limitation
24 for filing a motion to reopen if it is “based on changed
2
1 country conditions arising in the country of nationality or
2 the country to which removal has been ordered, if such
3 evidence is material and was not available and would not
4 have been discovered or presented at the previous
5 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
6 However, Zeng’s activities in the United States did not
7 constitute changed conditions in China excusing the untimely
8 filing of her motion to reopen. See Li Yong Zheng v. U.S.
9 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005).
10 Moreover, the BIA did not abuse its discretion in finding
11 that Zeng failed to provide credible, material evidence of
12 changed circumstances in China based on local Chinese
13 government officials’ discovery of her activities in the
14 United States. In making its finding and declining to
15 credit the only evidence of such circumstances, the BIA
16 reasonably relied on the IJ’s underlying adverse credibility
17 determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
18 147 (2d Cir. 2007) (holding that the BIA may decline to
19 credit documentary evidence submitted with a motion to
20 reopen by an alien who was found not credible in the
21 underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d
22 160, 170 (2d Cir. 2007)). Accordingly, because the BIA did
3
1 not err in finding that Zeng failed to demonstrate changed
2 country conditions in China, it did not abuse its discretion
3 in denying her motion to reopen as untimely.
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of
6 removal that the Court previously granted in this petition
7 is VACATED, and any pending motion for a stay of removal in
8 this petition is DISMISSED as moot. Any pending request for
9 oral argument in this petition is DENIED in accordance with
10 Federal Rule of Appellate Procedure 34(a)(2) and Second
11 Circuit Local Rule 34.1(b).
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
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