NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1330
___________
JI XIAN ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-687-375)
Immigration Judge: Honorable Albert J. Riefkohl
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 15, 2010
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: December 15, 2010)
___________
OPINION
___________
PER CURIAM.
Petitioner Ji Xian Zheng seeks review of the Board of Immigration
Appeals’ (BIA) denial of her motion to reopen and motion for reconsideration. For the
reasons that follow, we will deny the petition for review.
Zheng, a native and citizen of China, arrived in the United States in
September 2004. The following month, she was served with a Notice to Appear,
charging her with removability under INA § 212(a)(7)(A)(i)(I). Zheng conceded
removability before the Immigration Judge (“IJ”) and applied for asylum, withholding of
removal, and CAT relief based on her opposition to China=s coercive family planning
policy. During her removal proceedings, Zheng testified that she told immigration
officials upon her arrival in the United States that she practiced Falun Gong because her
smuggler told her that she would be immediately returned to China if she did not. She
claimed that she took up Falun Gong later in the United States while working in a
restaurant.
In March 2007, the IJ issued an opinion denying Zheng’s application for
asylum and related relief, finding her claim of persecution under China=s planning policy
speculative because she was not married, engaged, and did not have any children. He
also found her claimed Falun Gong practice to be unsupported by credible testimony or
reasonably available corroborative evidence. Zheng timely appealed the IJ’s decision to
the BIA and, in a July 2008 decision, the BIA affirmed. Zheng did not petition for
review of the BIA=s final order of removal.
In November 2008, Zheng filed a motion for reconsideration and a motion
to reopen with the BIA, offering additional evidence of her practice of Falun Gong. In a
January 2010 decision, the BIA denied both motions, noting that they were untimely filed
and that no exceptions to the time-bar were applicable. Zheng filed a timely petition for
review.
2
We have jurisdiction under 8 U.S.C. § 1252(a) to review the denial of
Zheng’s motion to reopen and motion for reconsideration. However, we agree with the
Government that we lack jurisdiction to review Zheng’s final order of removal because
she did not file a timely petition for review of that order. See 8 U.S.C. § 1252(b)(1)
(providing for 30-day deadline in which to file petition for review); Stone v. INS, 514
U.S. 386, 395 (1995) (timely motion to reopen or reconsider does not toll running of
filing period for review of BIA’s underlying removal order).
We review the BIA’s denial of a motion to reopen or reconsider for abuse
of discretion. See Borges v. Gonzales, 402 F. 3d 398, 404 (3d Cir. 2005). The BIA’s
decision is entitled to “broad deference,” see Ezeagwuna v. Ashcroft, 325 F.3d 396, 409
(3d Cir. 2003), and it “will not be disturbed unless [it] is found to be arbitrary, irrational,
or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
A motion to reopen “must be filed no later than 90 days after the date on
which the final administrative decision was rendered in the proceeding sought to be
reopened.” See 8 C.F.R. § 1003.2(c)(2). A motion for reconsideration must be filed
within 30 days of that decision. See 8 C.F.R. § 1003.2(b)(2). Zheng’s motion to reopen
was filed on November 10, 2008, well more than 90 days after the BIA issued its final
removal order on July 16, 2008. However, the 90-day time limit does not apply if the
motion to reopen is based on “changed country conditions arising in the country of
nationality . . . if such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding.” See INA § 240(c)(7)(C)(ii).
3
A motion for reconsideration is a “request that the Board re-examine its
decision in light of additional legal arguments, a change of law, or perhaps an argument
or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec. 336, 338
(BIA 2002) (en banc) (internal quotation and citations omitted). Such motions “shall
state the reasons for the motion by specifying the errors of fact or law in the prior Board
decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1).
Zheng does not dispute that her motions were untimely. Instead, she argues
that the BIA: 1) failed to consider significant record evidence supporting her claim of
changed conditions in China; 2) improperly determined that she only demonstrated a
change in personal circumstances; and 3) improperly concluded that she failed to satisfy
the “evidentiary requirement” for reopening. (See Petitioner’s Brief (“Pet Br.”) at 15-
20.)
As an initial matter, contrary to Zheng’s assertion, the BIA observed all of
the evidence that she presented in support of her motion to reopen. The BIA noted
specifically that the only two background materials that she presented with her motion
discussing Falun Gong were the same as those she submitted in support of her earlier
asylum application. Zheng does not dispute the BIA’s finding.
Also, contrary to Zheng’s assertion, the BIA did not conclude that she
“only made a showing of changes in personal circumstances.” Id. at 16. Indeed, the BIA
made no reference to Zheng’s personal circumstances in its decision. However, the BIA
did conclude that Zheng failed to establish changed country conditions in China such that
4
a Falun Gong practitioner would more likely be persecuted for her activities in November
2008, when she moved to reopen her case, than in March 2007, the date of her removal
hearing.
Supporting her motion to reopen, Zheng presented an affidavit detailing her
continued practice of Falun Gong in the United States as well as her recent involvement
in protests in New York seeking fair treatment for practitioners of Falun Gong in China.
She also included a letter from her mother, who lives in China, explaining that, in August
2008, officials came to her home and told her that they were aware that Zheng had been
practicing Falun Gong in the United States and that she must stop doing so. Zheng’s
mother also alleged that these officials told her that Zheng must report to them upon her
return to China.
The BIA determined that the evidence was insufficient to warrant
reopening Zheng’s case. It further concluded that Zheng had not demonstrated any error
of fact or law in its previous decision warranting reconsideration.
The BIA did not abuse its discretion in denying Zheng’s motion to reopen.1
As the BIA noted, Zheng did not present any previously unavailable articles or
1
Zheng does not dispute the BIA’s conclusion that she failed to identify any
error of fact or law in its prior decision warranting reconsideration. She has
therefore waived review of that finding. See United States v. Pelullo, 399 F.3d
197, 222 (3d Cir. 2005).
5
documentation supporting her claim of changed conditions in China regarding the
treatment of Falun Gong practitioners since she was ordered removed. She did not
submit any communication from the Chinese government instructing her to surrender to
officials upon her return to China as a result of her continued practice of Falun Gong.
And, although Zheng presented an affidavit from her mother saying as much, it is unclear
how officials became aware that Zheng began practicing Falun Gong after she left
China.2
Accordingly, we will deny the petition for review.
2
Zheng claims that photographs were taken during one of the protests in which she
participated, but her mother’s letter does not indicate that Chinese officials identified
Zheng on that basis.
6