10-2501-ag
Zhang v. Holder
BIA
A070 528 959
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 26th day of August, two thousand eleven.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_______________________________________
JUN-LAN ZHANG,
Petitioner,
v. 10-2501-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Peter L. Quan, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Richard M. Evans, Assistant
Director; Benjamin J. Zeitlin, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED in part and DISMISSED in part.
Jun-Lan Zhang, a citizen of the People’s Republic of
China, seeks review of a June 1, 2010 order of the BIA denying
his motion to reopen. See In re Jun-Lan Zhang, No. A070 528
959 (B.I.A. June 1, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history of this case.
We review the BIA’s denial of reopening deferentially for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008). An alien may file one motion to
reopen within 90 days of the final administrative decision.
See 8 U.S.C. § 1229a(c)(7)(c)(i); 8 C.F.R. § 1003.2(c)(2).
Although Zhang’s third motion was indisputably untimely and
number-barred, such limitations do not apply if an applicant
demonstrates materially “changed country conditions arising in
the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
see also 8 C.F.R. § 1003.2(c)(3)(ii).
Zhang submits that a purported notice from government
officials in Houyu County asking him to “[p]lease come back to
China to accept the punishment as soon as possible” for his
“support[] for the ‘Jun[e] 4th Activity,’” J.A. 31,
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demonstrated a material change in country conditions, see
Pet’r’s Br. at 7-8. We are not persuaded. Zhang did not
describe how or when he received this notice, or explain why
the Chinese government would be interested in him nearly
twenty years after his alleged participation in student
democracy activities. Moreover, while the notice might be
evidence of continuing persecution of political dissidents by
the Chinese government, Zhang did not explain how it
demonstrated a change in the treatment of dissidents. See
Jian Hui Shao v. Mukasey, 546 F.3d at 169. Indeed, Zhang did
not even mention the notice in his affidavit, which asserted
that Zhang feared persecution “[b]ecause [he] illegally
departed from China.” J.A. 29. In these circumstances, the
BIA reasonably concluded that the notice was insufficient to
establish materially changed country conditions. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
2006) (observing that weight afforded to applicant’s evidence
in immigration proceedings lies largely within BIA’s
discretion). Accordingly, the agency did not abuse its
discretion in denying reopening.
Zhang contends that he was deprived of due process when
the immigration judge (“IJ”) denied his initial asylum
application in January 2001 without sufficiently considering
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his testimony. The IJ’s decision, however, is not properly
before this Court. See, e.g., Ke Zhen Zhao v. U.S. Dep’t of
Justice, 265 F.3d 83, 90 (2d Cir. 2001); see also Stone v.
INS, 514 U.S. 386, 405-06 (1995). Further, Zhang failed to
exhaust this due process challenge before the BIA. See Foster
v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004); Theodoropoulos v.
INS, 358 F.3d 162, 172 (2d Cir. 2004) (describing exhaustion
requirements in habeas proceeding). Accordingly, we lack
jurisdiction to consider this claim, and we dismiss the
petition to that extent.
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED and any pending motion for
a stay of removal in this petition is DISMISSED as moot. Any
pending request for oral argument in this petition is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2) and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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