09-3022-ag
Zheng v. Holder
BIA
Weisel, IJ
A072 054 646
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 21st day of October, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
JIAN GAN ZHENG,
Petitioner,
v. 09-3022-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Cindy S. Ferrier, Senior
Litigation Counsel; Joseph A.
O’Connell, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Jian Gan Zheng, a native and citizen of the People’s
Republic of China, seeks review of a December 3, 2009, order
of the BIA affirming the December 5, 2007, decision of the
Immigration Judge (“IJ”), Robert D. Weisel, denying his
second motion to reopen. In re Jian Gan Zheng, No. A072 054
646 (B.I.A. Dec. 3, 2009), aff’g No. A072 054 646 (Immig.
Ct. N.Y. City Dec. 5, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
of this case.
I. Jurisdiction
Although Zheng’s July 2009 petition for review pre-
dated the BIA’s December 2009 amended final order of
removal, we retain jurisdiction to entertain the instant
petition for review. See Lewis v. Gonzales, 481 F.3d 125,
129 (2d Cir. 2007) (exercising jurisdiction over otherwise
premature petition, notwithstanding lack of later-filed,
timely petition, “when the BIA ha[d] since affirmed
petitioner’s removal order and the respondent ha[d] not
shown prejudice” (internal citations and quotations
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omitted)). The BIA’s December 2009 order affirmed, on the
same grounds, Zheng’s June 2009 removal order; and the
government has not argued or demonstrated that “it was in
any way prejudiced” by the early filing of Zheng’s petition
for review. See id. Thus, we retain jurisdiction to
consider it. See id.
II. Agency’s Denial of Zheng’s Motion to Reopen
We review the BIA’s denial of Zheng’s motion to reopen
for abuse of discretion. Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). An alien may only file one motion
to reopen and must do so within 90 days of the final
administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
§ 1003.23(b)(1). There is no time or numerical limitation,
however, if an alien establishes materially “changed country
conditions arising in the country of nationality.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(i).
Here, the BIA did not abuse its discretion in denying
Zheng’s second motion to reopen, which was indisputably
untimely and number-barred.
As the BIA found, Zheng’s decision to remain in the
United States and father several children after being
ordered excluded was a change in personal circumstances, not
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a change in country conditions. See Yuen Jin v. Mukasey,
538 F.3d 143, 155 (2d Cir. 2008); Li Yong Zheng v. U.S.
Dep’t of Justice, 416 F.3d 129, 130 (2d Cir. 2005). Nor has
Zheng submitted evidence to support his conclusory assertion
that enforcement of China’s population control policy has
become more severe since the time of the IJ’s decision. See,
e.g., Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.
2006). Rather, that evidence indicates only that Zheng will
be subject to that policy upon his return to China as a
result of the change in his personal circumstances, not any
change in the policy.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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