Yan Zheng Weng v. Holder

09-0476-ag Weng v. Holder BIA A077 977 489 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 15 th day of April, two thousand ten. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 GUIDO CALABRESI, 9 REENA RAGGI, 10 Circuit Judges. 11 ______________________________________ 12 13 YAN ZHENG WENG, 14 Petitioner, 15 09-0476-ag 16 v. NAC 17 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, BOARD OF 20 IMMIGRATION APPEALS, 21 Respondents. 22 ______________________________________ 1 FOR PETITIONER: Thomas D. Barra, Barra & Ieraci, 2 Forest Hills, New York. 3 4 FOR RESPONDENTS: Tony West, Assistant Attorney 5 General; Anh-Thu P. Mai-Windle, 6 Senior Litigation Counsel; James A. 7 Hurley, Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, D.C. 11 12 UPON DUE CONSIDERATION of this petition for review of a 13 Board of Immigration Appeals (“BIA”) decision, it is hereby 14 ORDERED, ADJUDGED, AND DECREED that the petition for review 15 is DENIED. 16 Petitioner, Yan Zheng Weng, a native and citizen of the 17 People’s Republic of China (“China”), seeks review of a 18 January 9, 2009 order of the BIA denying her motion to 19 reopen her removal proceedings. In re Yan Zheng Weng, No. 20 A 077 977 489 (B.I.A. Jan. 9, 2009). We assume the parties’ 21 familiarity with the underlying facts and procedural history 22 of the case. 23 We review the BIA’s denial of a motion to reopen for 24 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 25 Cir. 2006). Where the BIA considers relevant evidence of 26 country conditions in evaluating a motion to reopen, we 27 review the BIA’s factual findings under the substantial 28 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 29 138, 169 (2d Cir. 2008). 2 1 An alien may only file one motion to reopen and must do 2 so within 90 days of the final administrative decision. 3 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is 4 no dispute that Weng’s second motion to reopen was both 5 untimely and numerically barred. However, there is no time 6 or numerical limitation where the alien establishes 7 materially “changed circumstances arising in the country of 8 nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). 9 The BIA found that Weng failed to demonstrate any 10 change in the Chinese government’s treatment of political 11 dissidents. The BIA further found that the changed 12 circumstance Weng alleged – her recent membership in the 13 Christian Democracy Party – reflected a personal change, not 14 a change in country conditions. 15 Weng does not challenge the BIA’s determination that 16 her membership in the CDP constitutes only a change in her 17 personal circumstances, and not a change in country 18 conditions. This is fatal to her claim, as it is 19 well-settled that a change in personal circumstances does 20 not suffice to establish an exception to the timeliness 21 requirement under 8 C.F.R. § 1003.2(c)(3)(ii). See Li Yong 22 Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130-31 (2d 3 1 Cir. 2005) (finding that a change in personal circumstances 2 does not establish an exception to the filing deadline for 3 motions to reopen); cf. Wei Guang Wang v. BIA, 437 F.3d 270, 4 273-74 (2d Cir. 2006) (“[I]t would be ironic, indeed, if 5 petitioners . . . who have remained in the United States 6 illegally following an order of deportation, were permitted 7 to have a second and third bite at the apple simply because 8 they managed to marry and have children while evading 9 authorities. This apparent gaming of the system in an effort 10 to avoid deportation is not tolerated by the existing 11 regulatory scheme.”). 12 Regardless, because Weng refers only to a very general 13 “deterioration” in the Chinese government’s overall human 14 rights record, she has failed to demonstrate a material 15 change in circumstances regarding the treatment of political 16 dissidents in China. See 8 C.F.R. § 1003.2(c)(3)(ii). 17 Thus, we find that the BIA did not abuse its discretion in 18 denying the motion to reopen as untimely and number-barred. 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of 21 removal that the Court previously granted in this petition 22 is VACATED, and any pending motion for a stay of removal in 4 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9 5