United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-61126
Summary Calendar
JUN ZHANG,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79 939 781
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Before KING, HIGGINBOTHAM, and GARZA, circuit judges.
PER CURIAM:*
Jun Zhang, a native and citizen of China, petitions this
court for review of the BIA’s denial of his motion to reopen
removal proceedings based on changed circumstances in China and
new evidence. Zhang concedes that his motion to reopen was not
filed until after the 90-day deadline in 8 U.S.C.
§ 1229a(c)(7)(C)(i) had passed, but Zhang argued before the BIA
-- and argues again here -- that his late filing is excused under
§ 1229a(c)(7)(C)(ii) because country conditions changed in China
when government officials there communicated threats against
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-61126
-2-
Zhang to his father in response to Zhang’s Falun Gong activities
in the United States. The BIA rejected this argument and denied
Zhang’s motion to reopen, reasoning that China’s repressive
policy toward Falun Gong practitioners does not represent a
change in country conditions that was not available or
discoverable at the time of Zhang’s previous hearing because the
policy existed at that time.
We have jurisdiction to entertain Zhang’s petition for
review. Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005).
This situation is analogous to cases affirming the denial of
motions to reopen where, for example, the birth of another child
in the United States raised for the first time the spectre of
persecution under China’s already-existing “one child” policy.
See Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-131 (2d
Cir. 2005). Like those cases, the policy at issue here was
discoverable prior to Zhang’s first hearing even if it only
became material for the first time at a later date. Therefore,
the BIA’s finding that the threats communicated to Zhang’s father
do not reflect the kind of change in country circumstances that
is contemplated by § 1229a(c)(7)(C)(ii) was not an abuse of
discretion. See Lara v. Trominski, 216 F.3d 487, 496 (5th Cir.
2000); see also Gomez-Arevalo v. Gonzales, 161 F. App’x 354, 357
(5th Cir. 2005) (unpublished).
Accordingly, Zhang’s motion for judicial notice is GRANTED,
but his petition for review is DENIED.