Wen Lan Zeng v. Holder

10-4345-ag Zeng v. Holder BIA A095 369 354 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 26th day of January, two thousand twelve, 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 RAYMOND J. LOHIER, JR., 10 SUSAN L. CARNEY, 11 Circuit Judges. 12 _______________________________________ 13 14 WEN LAN ZENG, 15 Petitioner, 16 17 v. 10-4345-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONER: Lee Ratner, Law Offices of Michael 25 Brown, New York, N.Y. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General; Mark C. Walters, Senior 29 Litigation Counsel; Daniel I. 1 Smulow, Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D.C. 5 UPON DUE CONSIDERATION of this petition for review of a 6 decision of the Board of Immigration Appeals (“BIA”), it is 7 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 8 review is DENIED. 9 Wen Lan Zeng, a native and citizen of the People’s 10 Republic of China, seeks review of an October 5, 2010, 11 decision of the BIA denying her motion to reopen. In re Wen 12 Lan Zeng, No. A095 369 354 (B.I.A. Oct. 5, 2010). We assume 13 the parties’ familiarity with the underlying facts and 14 procedural history of this case. 15 We review the BIA’s denial of Zeng’s motion to reopen 16 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 17 (2d Cir. 2006). As a general rule, an alien must file a 18 motion to reopen within 90 days of the agency’s final 19 administrative decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 20 8 C.F.R. § 1003.2(c)(2). Although Zeng’s motion was 21 indisputably untimely because it was filed more than five 22 years after the agency’s final order of removal, see 23 8 U.S.C. § 1229a(c)(7)(C)(i), there is no time limitation 24 for filing a motion to reopen if it is “based on changed 2 1 country conditions arising in the country of nationality or 2 the country to which removal has been ordered, if such 3 evidence is material and was not available and would not 4 have been discovered or presented at the previous 5 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). 6 However, Zeng’s activities in the United States did not 7 constitute changed conditions in China excusing the untimely 8 filing of her motion to reopen. See Li Yong Zheng v. U.S. 9 Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005). 10 Moreover, the BIA did not abuse its discretion in finding 11 that Zeng failed to provide credible, material evidence of 12 changed circumstances in China based on local Chinese 13 government officials’ discovery of her activities in the 14 United States. In making its finding and declining to 15 credit the only evidence of such circumstances, the BIA 16 reasonably relied on the IJ’s underlying adverse credibility 17 determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 18 147 (2d Cir. 2007) (holding that the BIA may decline to 19 credit documentary evidence submitted with a motion to 20 reopen by an alien who was found not credible in the 21 underlying proceeding) (citing Siewe v. Gonzales, 480 F.3d 22 160, 170 (2d Cir. 2007)). Accordingly, because the BIA did 3 1 not err in finding that Zeng failed to demonstrate changed 2 country conditions in China, it did not abuse its discretion 3 in denying her motion to reopen as untimely. 4 For the foregoing reasons, the petition for review is 5 DENIED. As we have completed our review, any stay of 6 removal that the Court previously granted in this petition 7 is VACATED, and any pending motion for a stay of removal in 8 this petition is DISMISSED as moot. Any pending request for 9 oral argument in this petition is DENIED in accordance with 10 Federal Rule of Appellate Procedure 34(a)(2) and Second 11 Circuit Local Rule 34.1(b). 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, Clerk 14 15 4