10-2709-ag
Zhong v. Holder
BIA
A029 948 930
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 3rd day of April, two thousand twelve.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _________________________________________
12
13 DONGSHENG ZHONG, AKA DONG SHENG ZHONG,
14 Petitioner,
15
16 v. 10-2709-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Peter S. Gordon, Forest Hills, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Thomas B. Fatouros, Senior
28 Litigation Counsel; Pegah Vakili,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Dongsheng Zhong, a native and citizen of the
6 People’s Republic of China, seeks review of the June 24,
7 2010, decision of the BIA denying his motion to reopen. In
8 re Dongsheng Zhong, No. A029 948 930 (B.I.A. June 24, 2010).
9 We review the BIA’s denial of a motion to reopen for abuse
10 of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d
11 Cir. 2006) (per curiam). When the BIA evaluates country
12 conditions evidence submitted with a motion to reopen, we
13 review its findings for substantial evidence. See Jian Hui
14 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history of the case.
17 The BIA’s denial of Zhong’s motion to reopen as
18 untimely was not an abuse of discretion. A motion to reopen
19 generally must be filed no later than 90 days after the date
20 on which the final administrative decision has been rendered
21 in the proceedings sought to be reopened. 8 U.S.C.
22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
2
1 dispute that Zhong’s 2009 motion was untimely, as the final
2 administrative decision was issued in 2001. See id.
3 However, the time and number limitations do not apply to a
4 motion to reopen if it is “based on changed circumstances
5 arising in the country of nationality or in the country to
6 which deportation has been ordered, if such evidence is
7 material and was not available and could not have discovered
8 or presented at the previous hearing.” 8 C.F.R.
9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
10 Zhong contends that his new Falun Gong activities in the
11 United States constitute changed circumstances. As the BIA
12 noted, Zhong’s Falun Gong activities in the United States
13 reflect a self-induced change in personal circumstances, and
14 therefore do not exempt his motion from the applicable bars.
15 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Wei
16 Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006).
17 Zhong also argues that he demonstrated changed country
18 conditions by submitting evidence which shows that
19 conditions for Falun Gong practitioners in China worsened in
20 2008, and that the BIA overlooked this evidence. However,
21 the BIA specifically referenced this evidence in its
22 decision, and acknowledged that a change in conditions
3
1 occurred in 1999, when the Chinese government banned Falun
2 Gong, almost a decade before Zhong commenced his Falun Gong
3 practice. The BIA noted that the evidence showed
4 “continuing repression” of Falun Gong practitioners in China
5 and “substantial repression before and after the 2008
6 Olympics,” not that conditions changed in 2008. This
7 acknowledgment of the evidence was sufficient. Jian Hui
8 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (noting
9 that the BIA does not need to expressly parse or refute
10 every piece of evidence submitted by the petitioner); Xiao
11 Ji Chen v. US Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d
12 Cir. 2006).
13 Moreover, the BIA’s determination that the evidence
14 submitted by Zhong failed to demonstrate any change in
15 condition between 1999, when the Chinese government banned
16 Falun Gong, and 2009, when Zhong filed the motion to reopen,
17 is supported by substantial evidence. See Jian Hui Shao,
18 546 F.3d at 169. While the background materials show a
19 general deterioration of human rights around the 2008
20 Beijing Olympics, and a continued repression of Falun Gong
21 practitioners, there is nothing to show a change of
22 conditions for Falun Gong practitioners in China in a way
4
1 material to Zhong’s claim. As this evidence supports the
2 BIA’s decision that repression of Falun Gong practitioners
3 was ongoing since 1999, the record does not compel a
4 contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); see also
5 Castro v. Holder, 597 F.3d 93, 99-100 (2d Cir. 2010).
6 For the foregoing reasons, the petition for review is
7 DENIED.
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
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