De Ji Zheng v. Holder , 387 F. App'x 86 ( 2010 )

09-3807-ag
Zheng v. Holder
BIA
A029 791 081
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 22 nd day of July, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _________________________________________
12
13 DE JI ZHENG,
14 Petitioner,
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16 v. 09-3807-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Lee Ratner, Law Offices of Michael
24 Brown, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ethan B. Kanter, Senior
28 Litigation Counsel; Zoe J. Heller,
29 Office of Immigration Litigation,
30 United 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 De Ji Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of the August 20,
7 2009, order of the BIA denying his motion to reopen. In re
8 De Ji Zheng, No. A029 791 081 (B.I.A. Aug. 20, 2009). We
9 review the BIA’s denial of a motion to reopen for abuse of
10 discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
11 2006). To the extent the BIA evaluated Zheng’s country
12 conditions evidence, we will uphold its findings so long as
13 they are supported by substantial evidence. See Jian Hui
14 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history of the case.
17 The BIA did not abuse its discretion in denying Zheng’s
18 motion to reopen as untimely and number-barred. See Ali,
19 448 F.3d at 517. A motion to reopen must generally be filed
20 no later than 90 days after the date on which the final
21 administrative decision was rendered in the proceedings
22 sought to be reopened and only one such motion may be filed.
2
1 8 C.F.R. § 1003.2(c)(2). There is no dispute that Zheng’s
2 second motion to reopen, filed in February 2009, was
3 numerically barred and untimely. See id. Moreover, the
4 agency did not abuse its discretion in finding that Zheng’s
5 political activities in the U.S. did not constitute “changed
6 circumstances arising in [his] country of nationality”
7 sufficient to excuse the time and number limitations barring
8 his motion. See 8 C.F.R. § 1003.2(c)(3)(ii). Zheng argues
9 that his political activities in the U.S. were not “self-
10 induced” because he joined the China Freedom and Democracy
11 Party (“CFDP”) by invitation. That argument has no bearing
12 on the BIA’s reasonable determination that his activities
13 did not “arise” in China. See id.
14 Although Zheng argues that the evidence he submitted
15 with his motion demonstrated changed country conditions with
16 respect to China’s treatment of returnees who participated
17 in pro-democracy activities overseas, the BIA did not err in
18 according his evidence diminished weight, particularly in
19 light of the adverse credibility finding the Immigration
20 Judge (“IJ”) had made in the underlying proceedings. See
21 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007)
22 (holding that the BIA reasonably rejected an unauthenticated
3
1 document when the IJ had previously found the applicant not
2 credible); Poradisova v. Gonzales, 420 F.3d 70, 81 n.8 (2d
3 Cir. 2005) (noting that the agency has broad discretion in
4 the weight it accords evidence); see also Matter of H-L-H- &
5 Z-Y-Z-, 25 I. & N. Dec. 209, 214 & n.5 (BIA 2010) (reasoning
6 that authentication is more reasonably expected when a
7 document allegedly authored by local officials concerning
8 what will happen to an applicant is obtained for purposes of
9 asylum proceedings).
10 Zheng’s argument that the IJ’s adverse credibility
11 finding pertained only to his family planning claim, as
12 opposed to his political activities, is likewise without
13 merit. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d
14 Cir. 2007) (holding that the BIA may refuse to credit
15 documentary evidence based on an IJ’s finding that the
16 applicant’s testimony was not credible, relying on the maxim
17 falsus in uno, falsus in omnibus) (citing Siewe v. Gonzales,
18 480 F.3d 160, 170 (2d Cir. 2007).
19 Finally, because Zheng does not challenge the BIA’s
20 finding that his claim of ineffective assistance of counsel
21 was insufficient to merit reopening, or its finding that his
22 marriage and the birth of his child in the U.S. did not
4
1 constitute changed circumstances excusing the untimely
2 filing of his motion, we do not address those portions of
3 the BIA’s opinion.
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.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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