11-4630 BIA
Zhao v. Holder A073 043 845
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 Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New
York, New York, on the 20th day of July, two thousand
twelve.
PRESENT:
RALPH K. WINTER,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
_____________________________________
WEI ZHAO,
Petitioner,
v. 11-4630
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Thomas D. Barra, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting 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 Wei Zhao, a native and citizen of the
People’s Republic of China, seeks review of the October 11,
2011, order of the BIA denying his motion to reopen.
In re Wei Zhao, No. A073 043 845 (B.I.A. Oct. 11, 2011).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
Cir. 2005) (per curiam). An alien may file one motion to
reopen, generally no later than 90 days after the date on
which the final administrative decision was rendered in the
proceedings sought to be reopened. 8 U.S.C.
§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Here,
there is no dispute that Zhao’s 2011 motion was untimely
because the agency issued the final administrative order in
2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). The time limitation does not apply,
however, to a motion to reopen if it is “based on changed
circumstances arising in the country of nationality or in
the country to which deportation has been ordered, if such
evidence is material and was not available and could not
have been discovered or presented at the previous hearing.”
8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
The BIA did not abuse its discretion in denying Zhao’s
motion as untimely as he failed to demonstrate a material
change in conditions in China. As an initial matter, the
BIA did not err in concluding that Zhao’s participation in
Falun Gong-related activities in the United States is not a
changed circumstance arising in China. 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); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-
74 (2d Cir. 2006) (“A self-induced change in personal
circumstances cannot suffice [to reopen removal
proceedings].”).
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Moreover, substantial evidence supports the BIA’s
determination that the country conditions evidence Zhao
submitted in support of his motion to reopen describing an
intensification in the Chinese government’s repression of
Falun Gong practitioners in advance of, and during, the 2008
Beijing Olympics was not material to Zhao’s claim that he
feared future persecution if returned to China because none
of this evidence mentioned an intensification of persecution
of Falun Gong practitioners in Zhao’s home province of
Fujian. See Jian Hui Shao v. Mukasey, 546 F.3d 138,142,
149, 169 (2d Cir. 2008) (reviewing the BIA’s factual
findings regarding changed country conditions under the
substantial evidence standard and finding no error in BIA’s
evidentiary framework requiring applicant to demonstrate
that enforcement of family planning policy is carried out in
local area in a manner that would give rise to a
well-founded fear of persecution because of variations in
the enforcement of that policy).
Additionally, the BIA reasonably determined that the
record did not demonstrate Zhao’s prima facie eligibility
for relief. See INS v. Abudu, 485 U.S. 94, 104 (1988)
(holding that BIA may deny a motion to reopen on ground that
movant has not established prima facie eligibility for
underlying relief sought). Indeed, as the BIA found, Zhao
failed to demonstrate an objectively reasonable fear of
persecution because he did not present any evidence that
Chinese officials were aware, or would become aware, of his
participation in Falun Gong-related activities in the United
States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143
(2d Cir. 2008) (holding that applicant may establish
eligibility for asylum based exclusively on activities
undertaken after arrival in United States so long as he
demonstrates that “authorities in his country of nationality
are either aware of his activities or likely to become aware
of his activities”).
Because Zhao failed to present material evidence of a
material change in conditions, or establish his prima facie
eligibility for relief, the BIA did not abuse its discretion
in denying Zhao’s motion to reopen as untimely. See 8
U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii);
see also Abudu, 485 U.S. at 104.
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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. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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