11-266-ag
Zheng v. Holder
BIA
A073 648 002
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 29th day of May, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSEPH M. McLAUGHLIN,
9 REENA RAGGI,
10 Circuit Judges.
11 _________________________________________
12
13 BING DUAN ZHENG
14 Petitioner,
15
16 v. 11-266-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Blair T. O’Connor, Senior
27 Assistant Director; Kathryn L.
28 Moore, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Bing Duan Zheng, a native and citizen of the
6 People’s Republic of China, seeks review of a January 11,
7 2011, order of the BIA denying his motion to reopen. In re
8 Bing Duan Zheng, No. A073 648 002 (B.I.A. Jan. 11, 2011).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case. We have reviewed the
11 BIA’s denial of Zheng’s time- and number-barred motion for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006).
14 An individual ordinarily may file only one motion to
15 reopen and must do so within 90 days of the final
16 administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C);
17 8 C.F.R. § 1003.2(c)(2). However, the time and number
18 limitations do not apply to a motion to reopen if it is
19 “based on changed country conditions arising in the country
20 of nationality . . . if such evidence is material and was
21 not available and would not have been discovered or
22 presented at the previous proceeding.”
23 8 U.S.C. § 1229a(c)(7)(C)(ii). Zheng does not dispute that
24 his motion was time- and number-barred, but argues that he
2
1 has demonstrated materially changed country conditions to
2 excuse the time and number limitations. However, the BIA
3 reasonably denied Zheng’s motion to reopen, concluding that
4 he had demonstrated a “continuation” rather than a “change
5 in the suppression of religious activity” by the Chinese
6 government.
7 Zheng’s argument that the BIA erred in relying on
8 background evidence that pre-dates his asylum hearing is
9 unavailing. See 8 C.F.R § 1003.2(c)(1); see also Norani v.
10 Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006).
11 Zheng’s argument that the BIA erred in citing the
12 statistic that 90 million Christians worship in China, and
13 that it did not consider favorable background materials in
14 finding he had established a “continuation” rather than a
15 “change” in country conditions is further unavailing. See
16 Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008).
17 The evidence supports the BIA’s conclusion that religious
18 oppression in China is a continuation of existing policy, as
19 the 2009 Department of State International Religious Freedom
20 Report (“2009 DOS Report”) states that government “officials
21 continued to scrutinize, and in some cases harass,
22 registered and unregistered religious and spiritual groups”
23 (emphasis added) and the 2009 Congressional-Executive
24 Commission on China (“2009 Congressional Report”) describes
3
1 the Chinese government’s “continued control [of] religious
2 practices and repress[ion] of religious activity outside
3 state-approved parameters” (emphasis added). Thus, while
4 the record does demonstrate some increase in anti-religious
5 activities in the run up to and in the wake of the 2008
6 Beijing Olympics, the BIA’s conclusion is supported by
7 substantial evidence and entitled to deference.
8 Finally, we need not reach Zheng’s argument that he
9 established his prima facie eligibility for relief, both
10 because the BIA’s changed country conditions finding was
11 reasonable and because the BIA declined to reach this issue.
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
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