10-3004-ag
Zhang v. Holder
BIA
A073 680 816
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 23rd day of November, two thousand eleven.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
XIAO LE ZHANG,
Petitioner,
v. 10-3004-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; Sara J. Bergene, 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.
Xiao Le Zhang, a native and citizen of the People’s
Republic of China, seeks review of a June 30, 2010, decision
of the BIA denying her motion to reopen. In re Xiao Le
Zhang, No. A073 680 816 (B.I.A. June 30, 2010). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of Zhang’s motion to reopen
for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515,
517 (2d Cir. 2006). When, as here, the BIA considers
relevant evidence of country conditions in evaluating a
motion to reopen, we review the BIA’s factual findings under
the substantial evidence standard. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
An alien may file only one motion to reopen and must do
so within 90 days of the agency’s final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
Although Zhang’s motion was indisputably untimely and
number-barred because it was filed more than seven years
after the agency’s final order of deportation and it was her
third motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i),
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there is no time or numerical limitation for filing a motion
to reopen if it is “based on changed country conditions
arising in the country of nationality or the country to
which removal has been ordered, if such evidence is material
and was not available and would not have been discovered or
presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA did not abuse its discretion in finding that
Zhang’s newly commenced practice of Christianity constituted
a change in her personal circumstances, rather than a change
in country conditions sufficient to excuse the applicable
time and numerical limitations. See Li Yong Zheng v. U.S.
Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)
(explaining that a change in “personal circumstances in the
United States” did not constitute a change in country
conditions excusing the filing deadline for motions to
reopen). Moreover, the BIA did not err in finding that the
evidence that Zhang submitted in support of her motion to
reopen failed to demonstrate a material change in country
conditions excusing the untimely and number-barred filing of
her motion; that evidence indicated that since Zhang’s 2000
deportation hearing, the Chinese government had continually
repressed unregistered Christian churches. Furthermore,
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although the evidence indicates that the Chinese government
may have intensified its repression of unregistered
religious groups in certain regions in the period leading up
to the 2008 Olympics, that intensification was not material
to Zhang’s motion, which was filed more than one year after
the Olympics had concluded. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at
169. Accordingly, the BIA did not abuse its discretion in
denying Zhang’s motion to reopen as untimely and number-
barred. See 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. §
1003.2(c)(3)(ii).
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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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