09-4015-ag
Zheng v. Holder
BIA
A072 837 771
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 28 th day of July, two thousand ten.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 JING WEI ZHENG,
14 Petitioner,
15
16 v. 09-4015-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Fred Sichel, New York, New York.
24
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; David V. Bernal, Assistant
3 Director; Stuart S. Nickum, Trial
4 Attorney, Office of Immigration
5 Litigation, United States Department
6 of Justice, Washington, D.C.
7 UPON DUE CONSIDERATION of this petition for review of a
8 decision of the Board of Immigration Appeals (“BIA”), it is
9 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
10 review is DENIED.
11 Jing Wei Zheng, a native and citizen of the People’s
12 Republic of China, seeks review of an August 28, 2009, order
13 of the BIA denying his motion to reopen. In re Jing Wei
14 Zheng, No. A072 837 771 (B.I.A. Aug. 28, 2009). We assume
15 the parties’ familiarity with the underlying facts and
16 procedural history of this case.
17 We review the BIA’s denial of Zheng’s motion to reopen
18 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
19 (2d Cir. 2006). An alien may file only one motion to reopen
20 and must do so within 90 days of the final administrative
21 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
22 However, there is no time or numerical limitation where the
23 alien establishes materially “changed country conditions
24 arising in the country of nationality.” 8 U.S.C.
25 § 1229a(c)(7) (C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
2
1 Here, the BIA did not abuse its discretion in denying
2 Zheng’s motion to reopen, which was indisputably untimely.
3 Moreover, as the BIA found, Zheng’s legal custody of
4 his U.S.-citizen son was a change in his personal
5 circumstances, not a change in country conditions. See Yuen
6 Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). Although
7 Zheng argues that the 2007 State Department Country Report
8 for China indicates that “the Chinese government has been
9 pursuing and persecuting those who openly object the nation-
10 wide birth control policy,” the BIA reasonably determined
11 that such evidence demonstrated only a continuation of, not
12 a change in, China’s enforcement of the policy.
13 See 8 C.F.R. § 1003.2(b)(3)(ii ). Moreover, because the BIA
14 found that Zheng failed to overcome the IJ’s underlying
15 adverse credibility determination with respect to his
16 claimed fear of persecution based on his opposition to
17 China’s birth control policy, even if the 2007 Country
18 Report demonstrated changed country conditions, Zheng would
19 still have failed to demonstrate his prima facie eligibility
20 for relief. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.
21 2005); see also INS v. Abudu, 485 U.S. 94, 104-05 (1988 ).
22 Finally, to the extent that Zheng seeks to rely on the 2008
3
1 State Department Country Report for China to support his
2 contention, that Report was not submitted to the Board and
3 we therefore do not consider it on review. See 8 U.S.C. §
4 1252(b)(4)(A) (noting that the scope of our review is
5 constrained to “the administrative record on which the
6 [challenged] order of removal is based”). If we were to
7 consider it, we would reject the argument on its merits.
8 Lastly, this Court lacks jurisdiction to review Zheng’s
9 challenge to the BIA’s decision not to exercise its
10 authority under 8 C.F.R. § 1003.2(a), to reopen the
11 proceedings sua sponte, because such a decision is “entirely
12 discretionary.” See Ali, 448 F.3d at 518.
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
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