09-2134-ag
Zheng v. Holder
BIA
A070 894 663
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 26 th day of March, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 DONG JIAN ZHENG,
14 Petitioner,
15
16 v. 09-2134-ag
17 NAC
18
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL, BOARD OF IMMIGRATION APPEALS,
21 Respondents.
22 _______________________________________
23
24 FOR PETITIONER: Thomas D. Barra, Forest Hills, New
25 York.
26
27 FOR RESPONDENTS: Tony West, Assistant Attorney
28 General, Blair T. O’Connor,
29 Assistant Director, Juria L. Jones,
30 Trial Attorney, Office of
31 Immigration Litigation, Civil
32 Division, United States Department
33 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Dong Jian Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of an April 22,
7 2009, order of the BIA denying his motion to reopen his
8 removal proceedings. In re Dong Jian Zheng, No. A070 894
9 663 (B.I.A. Apr. 22, 2009). We assume the parties’
10 familiarity with the underlying facts and procedural history
11 of the case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). An alien who has been ordered removed may
15 file one motion to reopen, but must do so within 90 days of
16 the final administrative decision. 8 U.S.C. § 1229a(c)(7).
17 Here, the BIA properly denied Zheng’s motion to reopen as
18 untimely and number-barred because he filed it almost seven
19 years after his July 2002 final order of removal and it was
20 the second such motion he had filed. See id.; 8 C.F.R.
21 § 1003.2(c)(2).
22 The 90-day filing deadline and numerical limitation may
23 be excused if the alien can establish “changed country
2
1 conditions arising in the country of nationality . . . .”
2 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
3 The BIA reasonably concluded, however, that Zheng had shown
4 only that his personal circumstances had changed. See Wei
5 Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting
6 that “apparent gaming of the system in an effort to avoid
7 [removal] is not tolerated by the existing regulatory
8 scheme”); see also Yuen Jin v. Mukasey, 538 F.3d 143, 151-56
9 (2d Cir. 2008). Because Zheng was required to show changed
10 country conditions in order to succeed on his untimely and
11 number-barred motion, we need not reach his argument that he
12 is prima facie eligible for relief. See 8 U.S.C.
13 § 1229a(c)(7)(C)(ii).
14 For the foregoing reasons, the petition for review is
15 DENIED. Having completed our review, we DISMISS the
16 petitioner's pending motion for a stay of removal as moot.
17
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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