13-2228
Zhang v. Holder
BIA
A079 456 543
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of October, two thousand fourteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 DENNIS JACOBS,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 QI QING ZHANG,
14 Petitioner,
15
16 v. 13-2228
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Thomas D. Barra, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Francis W. Fraser, Senior
28 Litigation Counsel; Timothy B.
29 Stanton, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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 Qi Qing Zhang, a native and citizen of the People’s
6 Republic of China, seeks review of a May 14, 2013, decision
7 of the BIA denying his motion to reopen. In re Qi Qing
8 Zhang, No. A079 456 543 (B.I.A. May 14, 2013). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “‘disfavored.’” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.
15 Doherty, 502 U.S. 314, 323 (1992)). When the BIA considers
16 relevant evidence of country conditions in evaluating a
17 motion to reopen, we review the BIA’s factual findings under
18 the substantial evidence standard. See Jian Hui Shao v.
19 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
20 In this case, it is undisputed that Zhang’s 2013 motion
21 to reopen was untimely because the BIA issued his final
22 order of removal in 2005. See 8 U.S.C. § 1229a(c)(7)(C)(i)
2
1 (providing a 90-day period for moving to reopen); see also
2 8 C.F.R. § 1003.2(c)(2) (same). However, the time
3 limitation for filing a motion to reopen does not apply if
4 the motion “is based on changed country conditions arising
5 in the country of nationality or the country to which
6 removal has been ordered, if such evidence is material and
7 was not available and would not have been discovered or
8 presented at the previous proceeding.” 8 U.S.C.
9 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
10 The BIA did not err in finding that Zhang failed to
11 demonstrate a material change in the Chinese government’s
12 treatment of Falun Gong practitioners since the time of his
13 2004 proceedings before the IJ. As the BIA found, the
14 record evidence demonstrated that the Chinese government had
15 prohibited and punished severely the practice of Falun Gong
16 since 1999. Moreover, contrary to Zhang’s contention, a
17 U.S. Department of State report’s reference to the Chinese
18 government’s harvesting of organs from prisoners, including
19 Falun Gong practitioners, is not a recent development
20 establishing a material change in country conditions. See
21 Legislative Review Activities, H.R. Rep. 107-803, at 38
22 (2003)(noting that the House Committee on International
3
1 Relations held a hearing on June 27, 2001, titled: “Organs
2 for Sale: China’s Growing Trade and Ultimate Violations of
3 Prisoners’ Rights”); see also 8 U.S.C. § 1182f(a) (denying
4 entry into the United States to Chinese nationals engaged in
5 coerced organ transplantation).
6 Because the record evidence does not compel the
7 conclusion that the treatment of Falun Gong practitioners
8 has materially changed since the time of Zhang’s hearing
9 before the IJ, the BIA did not abuse its discretion in
10 denying his motion to reopen as untimely.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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