09-5019-ag
    Zheng v. Holder
                                                                                  BIA
                                                                          A078 719 821
                       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 28th day of October, two thousand ten.

    PRESENT:
             GUIDO CALABRESI,
             ROBERT A. KATZMANN,
             REENA RAGGI,
                    Circuit Judges.
    _____________________________________

    YU YAN ZHENG,
             Petitioner,

                      v.                                   09-5019-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Gary J. Yerman, New York, New York

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Francis W. Fraser, Senior
                                  Litigation Counsel; W. Daniel Shieh,
                                  Trial Attorney, Office of
                                  Immigration Litigation, Civil
                                  Division, United States Department
                                  of Justice, Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Yu Yan Zheng, a native and citizen of the People’s

Republic of China, seeks review of a November 20, 2009 order

of the BIA denying her motion to reopen.     In re Yu Yan

Zheng, No. A078 719 821 (B.I.A. Nov. 20, 2009).     We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion, mindful of the Supreme Court’s

admonition that such motions are disfavored.     See Ali v.

Gonzales, 

, 517 (2d Cir. 2006) (citing INS v.

Doherty, 

, 322-23 (1992)).     There is no dispute

that Zheng’s March 2009 motion to reopen was untimely and

numerically barred because the BIA entered a final

administrative order dismissing her appeal in December 2003

and Zheng filed her first motion to reopen in November 2006.

See 8 C.F.R. § 1003.2(c)(2).   However, the time and number

limitations do not apply to a motion to reopen “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

                               2
not have been discovered or presented at the previous

hearing.”    

  Zheng claims that her

motion falls under this exception.

    The BIA did not abuse its discretion in denying Zheng’s

motion to reopen.    Contrary to Zheng’s argument, there is no

indication that the BIA ignored any material evidence she

submitted.    See Jian Hui Shao v. Mukasey, 

, 169

(2d Cir. 2008) (recognizing that BIA need not “expressly

parse or refute on the record each individual argument or

piece of evidence offered by the petitioner” (internal

quotation marks omitted)); see also Xiao Ji Chen v. U.S.

Dep’t of Justice, 

, 337 n.17 (2d Cir. 2006)

(presuming that agency “has taken into account all of the

evidence before [it], unless the record compellingly

suggests otherwise”).    Rather, the record supports the BIA’s

reasonable determination that, although China has engaged in

discrimination and abuse against Christians, Zheng failed to

establish that conditions in China had fundamentally changed

such that reopening was warranted.     See Siewe v. Gonzales,

, 167 (2d Cir. 2007) (“Where there are two

permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” (internal

quotation marks omitted)); Xiao Ji 

(holding that weight afforded to applicant’s evidence in

                               3
immigration proceedings lies largely within IJ’s

discretion).

    Because the BIA did not abuse its discretion in finding

that Zheng failed to establish changed country conditions

sufficient to warrant reopening, we need not reach the BIA’s

finding that she failed to establish her prima facie

eligibility for relief.

    To the extent Zheng asks the Court to take judicial

notice of the 2009 Report of the Congressional-Executive

Commission on China, dated prior to the BIA’s denial of her

motion, we decline the invitation as our review is limited

to the record before the agency.    8 U.S.C. § 1252(b)(4)(A).

Moreover, this court has held that remand for agency

consideration of documents outside the administrative record

is inappropriate.   See Xiao Xing Ni v. Gonzales, 

, 269-70 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED 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




                               4