Xue Bing Zhang v. Holder

09-5096-ag
Zhang v. Holder
BIA
A075 962 501
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 7 th day of September, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 XUE BING ZHANG,
14 Petitioner,
15
16 v. 09-5096-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Lee Ratner, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Michelle Gorden Latour,
27 Assistant Director; Matt A. Crapo,
28 Trial Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
31
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 Xue Bing Zhang, a native and citizen of
6 China, seeks review of a November 18, 2009 order of the BIA
7 denying her motion to reconsider and reopen. In re Xue Bing
8 Zhang, No. A075 962 501 (B.I.A. Nov. 18, 2009). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case and note that this was
11 Zhang’s fifth motion filed before the BIA.
12 We review the BIA’s denial of a motion to reopen or
13 reconsider for abuse of discretion. See Kaur v. BIA, 413
14 F.3d 232, 233 (2d Cir. 2005) (per curiam). Here, the BIA
15 reasonably denied Zhang’s motion to reconsider because she
16 failed to show any error in fact or law in the BIA’s prior
17 decision. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S.
18 Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). Contrary
19 to Zhang’s arguments, the BIA reasonably declined to credit
20 her unauthenticated evidence based on the IJ’s underlying
21 adverse credibility determination. See Qin Wen Zheng v.
22 Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007). Furthermore,
2
1 the BIA did not err in finding no error in fact or law in
2 its prior decision, where it relied on State Department
3 reports, noted that Zhang voluntarily sent her United States
4 citizen child back to China, and highlighted other
5 authenticity concerns with her evidence, to conclude that
6 Zhang failed to overcome the prior adverse credibility
7 determination with credible evidence. See Xiao Ji Chen v.
8 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006); Tu
9 Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006); Melgar de
10 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
11 With respect to her untimely and number-barred motion to
12 reopen, the BIA did not abuse its discretion in finding that
13 Zhang failed to establish either a change in country
14 conditions or her prima facie eligibility for relief. See
15 Kaur, 413 F.3d at 233. The BIA also reasonably noted that
16 Zhang failed to attach an updated asylum application to her
17 motion, which is a requirement of establishing prima facie
18 eligibility. See 8 C.F.R. § 1003.2(c)(1); see also INS v.
19 Abudu, 485 U.S. 94, 104-05 (1988) (failure to establish
20 prima facie eligibility for relief is a ground upon which a
21 motion to reopen may be denied). In addition, the BIA
22 considered the evidence she submitted, and, in light of the
3
1 prior adverse credibility determination as well as
2 evidentiary and authenticity concerns, reasonably concluded
3 that she failed to establish a material change in country
4 conditions in China based either on her Falun Gong practice
5 or the family planning policy. See Wei Guang Wang v. BIA,
6 437 F.3d 270 (2d Cir. 2006); Jian Hui Shao v. Mukasey, 546
7 F.3d 138, 161-62 (2d Cir. 2008).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2), and Second
15 Circuit Local Rule 34(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
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