10-3371-ag
Zheng v. Holder
BIA
A073 489 954
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 27th day of September, two thousand eleven.
PRESENT:
JON O. NEWMAN,
ROBERT A. KATZMANN,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
GANG-QING ZHENG, AKA CHAO HSIUNG
CHAN,
Petitioner,
v. 10-3371-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Dehai Zhang, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Daniel E. Goldman, Senior Litigation
Counsel; Jem C. Sponzo, Trial Attorney,
Office of Immigration Litigation, Civil
Division, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is DENIED.
Gang-Qing Zheng, a native and citizen of China, seeks review
of an August 4, 2010, order of the BIA denying his motion to reopen
his exclusion proceedings. In re Gang-Qing Zheng, No. A073 489 954
(B.I.A. Aug. 4, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of the case. We review
the BIA’s denial of a motion to reopen for abuse of discretion.
See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Here, the
BIA did not abuse its discretion by denying Zheng’s motion to
reopen as untimely, as he filed it more than six years after his
final order of removal. See 8 U.S.C. § 1229a(c)(7).
Although the time limits on motions to reopen may be excused
when the movant demonstrates changed country conditions, 8 U.S.C.
§ 1229a(c)(7)(C)(ii), the BIA reasonably concluded that only
Zheng’s personal circumstances had changed, as his claim was based
on the fact that he joined the Chinese Democracy Party in 2007.
See Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting
that “apparent gaming of the system in an effort to avoid [removal]
is not tolerated by the existing regulatory scheme”); see also Yuen
Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008) (noting that
“it would be ‘ironic’ to allow aliens to reopen their cases . . .
simply because they were able to change their own personal
circumstances”).
The BIA did not abuse its discretion in giving little weight
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to Zheng’s affidavit and supporting letters stating that
authorities in China threatened that he would be arrested and
detained upon return to China, see Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight
afforded to the applicant’s evidence lies largely within the
discretion of the agency), particularly given the agency’s
underlying determination that Zheng was not credible, see Qin Wen
Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007) (finding
that the BIA did not err in rejecting the petitioner’s document
submitted in support of a motion to reopen based on legitimate
concerns about the petitioner’s credibility stemming from the IJ’s
underlying adverse credibility determination).
Zheng also argues that the BIA impermissibly made findings of
fact, but there was no fact-finding in noting that telephone bills
are not evidence of the content of telephone conversations.
Although Zheng argues that the BIA failed to consider some
affidavits in the record, the record does not compellingly suggest
that the BIA failed to take those affidavits into account, and in
any event those affidavits did not provide any support for Zheng’s
allegation that Chinese authorities were aware of Zheng’s political
activities or threatened to harm him because of those activities.
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n,17
(2d Cir. 2006) (“[W]e presume that [the BIA] has taken into account
all of the evidence . . . unless the record compellingly suggests
otherwise.”). Moreover, Zheng did not present any other evidence
documenting changed circumstances.
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For the foregoing reasons, the petition for review is DENIED.
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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