Jian Xim Zheng v. Holder

14-1044
Zheng v. Holder
BIA
A077 618 736
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
TO 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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 3rd day of April, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 JIAN XIM ZHENG, AKA JIAN XIN ZHENG,
14 AKA JIAN XING ZHENG,
15 Petitioner,
16
17 v. 14-1044
18 NAC
19 ERIC H. HOLDER, JR., UNITED
20 STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: Gary J. Yerman, New York, New York.
26
27 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
28 Attorney General; Linda S.
29 Wernery, Assistant Director;
1 Theodore C. Hirt, Senior
2 Litigation Counsel, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Jian Xim Zheng, a native and citizen of
12 China, seeks review of a March 13, 2014, decision of the BIA
13 denying his second motion to reopen as untimely and number
14 barred. In re Jian Xim Zheng, No. A077 618 736 (B.I.A. Mar.
15 13, 2014). We assume the parties’ familiarity with the
16 underlying facts and procedural history of this case.
17 We review the BIA’s denial of a motion to reopen “for
18 abuse of discretion.” Ali v. Gonzales, 448 F.3d 515, 517
19 (2d Cir. 2006). When the BIA considers relevant evidence of
20 country conditions in evaluating a motion to reopen based on
21 a change in those conditions, we review the BIA’s factual
22 findings under the substantial evidence standard. Jian Hui
23 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
24
2
1 The BIA’s denial of Zheng’s motion to reopen as
2 untimely and number-barred was not an abuse of discretion.
3 Zheng’s January 2014 motion was untimely, as he filed it
4 over twelve years after the final administrative order in
5 May 2001, and number-barred, as it was his second motion to
6 reopen. 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i); 8 C.F.R.
7 § 1003.2(c)(2). Although the time and number limitations
8 may be excused if the motion “is based on changed country
9 conditions arising in the country of nationality or the
10 country to which removal has been ordered, if such evidence
11 is material and was not available and would not have been
12 discovered or presented at the previous proceeding,” 8
13 U.S.C. § 1229a(c)(7)(C)(ii), the BIA reasonably concluded
14 that Zheng failed to establish worsened conditions for
15 underground church members in China since the time of his
16 hearing, Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA
17 2007) (explaining that to determine whether conditions have
18 materially changed, agency compares evidence submitted with
19 the motion with conditions that existed at the time of the
20 merits hearing).
21
3
1 The record evidence does not support Zheng’s assertion
2 that conditions have worsened since his hearing in 2001.
3 Reports that predate Zheng’s hearing and recent reports both
4 show that the Chinese government represses members of
5 underground churches through harassment, detention, and
6 arrests. Given that the country conditions evidence showed
7 only a continuation of this suppression of underground
8 church members, the BIA reasonably found that Zheng had
9 failed to demonstrate a material change in conditions in
10 China. See Jian Hui Shao, 546 F.3d at 169; Matter of S-Y-G-
11 , 24 I. & N. Dec. at 253. Nothing in the record indicates
12 that the BIA did not consider the record as a whole; rather,
13 it explicitly listed and cited to Zheng’s evidence, but
14 reasonably concluded, for the reasons stated, that the
15 evidence did not demonstrate any material change in
16 conditions. See Xiao Ji Chen v. U.S. Dep’t of Justice, 434
17 F.3d 144, 159-60 n.13 (2d Cir. 2006) (explaining presumption
18 that agency considers all evidence “unless the record
19 compellingly suggests otherwise”).
20 Because Zheng failed to demonstrate a material change
21 in conditions in China, the BIA did not abuse its discretion
4
1 in denying his motion to reopen as untimely and number-
2 barred. See 8 U.S.C. §§ 1229a(c)(7)(A), (C). Because that
3 ruling is dispositive, we do not reach the BIA’s alternative
4 bases for its denial of reopening. INS v. Bagamasbad, 429
5 U.S. 24, 25 (1976).
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, the pending motion
8 for a stay of removal in this petition is DISMISSED as moot.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
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