Jing Wei Zheng v. Holder

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 4