11-3991-ag BIA
Zhang v. Holder A070 852 230
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 24th day of April, two thousand twelve.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
XUE JIN ZHANG, AKA XUE JIN ZHENG,
Petitioner,
v. 11-3991-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Zhou Wang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; David V. Bernal, Assistant
Director; Yedidya Cohen, Trial
Attorney, Office of Immigration
Litigation, 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.
Petitioner Xue Jin Zhang, a native and citizen of the
People’s Republic of China, seeks review of a September 15,
2011, decision of the BIA denying his motion to reopen his
deportation proceedings. In re Xue Jin Zhang, No. A070 852
230 (B.I.A. Sept. 15, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this 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). An alien seeking to reopen proceedings is
required to file a motion to reopen no later than 90 days
after the date on which the final administrative decision
was rendered. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). There is no dispute that Zhang’s January
2011 motion to reopen was untimely because the BIA issued a
final order of removal in December 2002. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
Zhang contends, however, that he established a material
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change in conditions in China excusing the untimeliness of
his motion to reopen on the basis of the enactment of the
March 2005 Regulations of Religious Affairs. See 8 U.S.C.
§ 1229a(c)(7)(C)(ii). We conclude that the BIA’s denial of
Zhang’s motion to reopen as untimely was not an abuse of
discretion.
As the BIA determined, Zhang was unable to demonstrate
a material change in conditions because he failed to present
any evidence concerning the treatment of Chinese Christians
at the time of his 2000 merits hearing. See In re S-Y-G-,
24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining
whether evidence accompanying a motion to reopen
demonstrates a material change in country conditions that
would justify reopening, [the BIA] compare[s] the evidence
of country conditions submitted with the motion to those
that existed at the time of the merits hearing below.”); see
also 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the BIA’s
determination that China’s promulgation of the March 2005
Regulations of Religious Affairs did not constitute a
material change in circumstances is supported by substantial
evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008). In assessing the March 2005 Regulations of
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Religious Affairs, the BIA reasonably noted that Zhang’s
earliest country conditions evidence described a violent
crackdown on an underground church in 2001, which predated
the regulations’ enactment. See In re S-Y-G-, 24 I. & N.
Dec. at 253.
While Zhang takes issue with the BIA’s finding that the
country conditions evidence reflects a continuation, rather
than a material change, in China’s level of religious
repression, the task of resolving conflicts in the record
evidence lies “largely within the discretion of the agency.”
Jian Hui Shao, 546 F.3d at 171. Because the BIA’s
inference that conditions in China have not materially
changed “is tethered to the evidentiary record, we will
accord deference to the finding.” See Siewe v. Gonzales,
480 F.3d 160, 168-69 (2d Cir. 2007) (noting that “support
for a contrary inference – even one more plausible or more
natural – does not suggest error”). Moreover, given the
BIA’s explicit consideration of the March 2005 Regulations
of Religious Affairs, Zhang’s argument that the BIA ignored
his comparison of religious regulations is not supported by
the record. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency
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“has taken into account all of the evidence before [it],
unless the record compellingly suggests otherwise”).
Because the BIA did not abuse its discretion in denying
Zhang’s untimely motion, we decline to address Zhang’s prima
facie eligibility for asylum and withholding of removal, as
the BIA did not reach that issue. See INS v. Bagamasbad,
429 U.S. 24, 25 (1976).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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