11-5399
Zeng v. Holder
BIA
A072 455 590
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 27th day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 ZAO YANG ZENG, AKA TERUYA JIKKO,
14 Petitioner,
15
16 v. 11-5399
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Ada E. Bosque,
27 Senior Litigation Counsel; Mona
28 Maria Yousif, 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 Zao Yang Zeng, a native and citizen of
6 China, seeks review of a December 9, 2011, decision of the
7 BIA denying his motion to reopen his removal proceedings.
8 In re Zao Yang Zeng, No. A072 455 590 (B.I.A. Dec. 9, 2011).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). An alien seeking to reopen
14 proceedings is required to file a motion to reopen no later
15 than 90 days after the date on which the final
16 administrative decision was rendered. See 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Zeng’s motion to reopen, filed in 2010, was
19 untimely because the BIA issued a final order of removal in
20 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
21 § 1003.2(c)(2).
22 Zeng contends, however, that he established an
23 exception to the time limitation by demonstrating changed
2
1 country conditions based on an increase in persecution of
2 Christian house church members following his merits hearing
3 in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
4 8 C.F.R. § 1003.2(c)(3)(ii). We conclude that the BIA’s
5 denial of Zeng’s motion to reopen as untimely was not an
6 abuse of discretion.
7 Because Zeng did not support his motion with evidence
8 of country conditions at the time of his merits hearing, the
9 BIA did not err by comparing his newly submitted evidence
10 with that submitted in connection with his prior asylum
11 application. In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.
12 2007) (“In determining whether evidence accompanying a
13 motion to reopen demonstrates a material change in country
14 conditions that would justify reopening, [the BIA] compares
15 the evidence of country conditions submitted with the motion
16 to those that existed at the time of the merits hearing
17 below.”). As the BIA noted, the evidence of recent
18 conditions indicated a very similar situation for Christians
19 in China to that demonstrated by the evidence of conditions
20 in or before 1999, the time of his merits hearing.
21 Specifically, as the BIA noted, the country reports
22 indicated that the restrictions placed on unauthorized
3
1 religious groups in 1994 were not appreciably different than
2 those imposed by the 2005 Regulations on Religious Affairs.
3 Though Zeng argues that the BIA erred in concluding that the
4 evidence merely demonstrated continuing negative treatment
5 of unregistered Christians, the task of resolving conflicts
6 in the record evidence lies “largely within the discretion
7 of the agency.” See Jian Hui Shao v. Mukasey, 546 F.3d 138,
8 160-61 (2d Cir. 2008). Where, as here, the agency’s
9 inference “is tethered to the evidentiary record, we will
10 accord deference to the finding.” See Siewe v. Gonzales,
11 480 F.3d 160, 168-69 (2d Cir. 2007). Moreover, while the
12 evidence indicated that some church leaders and pastors had
13 been subjected to lengthy detentions and physical harm,
14 because Zeng alleged only that he would attend services in
15 an underground church, he did not show that the harm
16 suffered by church leaders was material as he would not be
17 similarly situated to the targeted individuals. See Jian
18 Hui Shao, 546 F.3d at 171.
19 Also, Zeng’s contention that the BIA erred in
20 discounting his evidence of conditions for Chinese
21 Christians outside of his home province of Fujian is
22 misplaced, as Zeng bore the burden of supporting his motion
4
1 with “material” evidence. See 8 C.F.R. § 1003.2(c)(1); see
2 also 8 U.S.C. § 1229a(c)(7)(B); Jian Hui Shao, 546 F.3d at
3 149 (stating that where enforcement of a policy varies, it
4 is the applicant’s burden to show a well-founded fear of
5 persecution in his locality in China); Xiao Ji Chen v. U.S.
6 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting
7 that the weight accorded to the applicant’s evidence lies
8 largely within the discretion of the agency).
9 As the BIA did not err in concluding that Zeng’s
10 conversion to Christianity in 2010 constituted a change in
11 personal circumstances, rather than a change in
12 circumstances in China that would except his motion from the
13 time limitation, see Yuen Jin v. Mukasey, 538 F.3d 143, 155
14 (2d Cir. 2008); Li Yong Zheng v. U.S. Dep’t of Justice, 416
15 F.3d 129, 130-31 (2d Cir. 2005), and as substantial evidence
16 supports the BIA’s conclusion that Zeng failed to
17 demonstrate a change in the treatment of Christians in
18 China, the BIA did not abuse its discretion by denying the
19 motion as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(ii);
20 8 C.F.R. § 1003.2(c)(3)(ii). Because the BIA did not abuse
21 its discretion in denying Zeng’s motion as untimely, we do
22 not address his prima facie eligibility for asylum,
23 withholding of removal, and relief under the Convention
5
1 Against Torture. See INS v. Bagamasbad, 429 U.S. 24, 25
2 (1976).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
6