Filed: Apr. 05, 2011
Latest Update: Feb. 21, 2020
Summary: 10-2003-ag Zheng v. Holder BIA A077 283 074 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 “S
Summary: 10-2003-ag Zheng v. Holder BIA A077 283 074 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 “SU..
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10-2003-ag
Zheng v. Holder
BIA
A077 283 074
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 5th day of April, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 LING ZHENG,
14 Petitioner,
15
16 v. 10-2003-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Peter S. Gordon, Forest Hills, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Terri J. Scadron, Assistant
28 Director; Anthony W. Norwood, Trial
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 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 Ling Zheng, a native and citizen of China, seeks review
6 of an April 30, 2010, order of the BIA denying her motion to
7 reopen her removal proceedings. In re Ling Zheng, No. A077
8 283 074 (B.I.A. Apr. 30, 2010). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of the 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). Here, the BIA did not abuse its discretion
14 by denying Zheng’s motion to reopen as untimely and number-
15 barred, as it was her third motion to reopen and she filed
16 it seven years after her final order of removal.
17 See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
18 Although the time limits on motions to reopen may be
19 excused when the movant demonstrates changed country
20 conditions, 8 U.S.C. § 1229a(c)(7)(C)(ii), the BIA
21 reasonably concluded that only Zheng’s personal
22 circumstances had changed, as her claim was based on the
23 fact that she began practicing Falun Gong in 2008. See Wei
2
1 Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting
2 that “apparent gaming of the system in an effort to avoid
3 [removal] is not tolerated by the existing regulatory
4 scheme”); see also Yuen Jin v. Mukasey,
538 F.3d 143, 151-56
5 (2d Cir. 2008).
6 Moreover, substantial evidence supported the BIA’s
7 determination that Zheng failed to establish that conditions
8 in China had materially changed. While the evidence
9 indicated that repression of Falun Gong practitioners
10 increased during the 2008 Olympics, the evidence also
11 indicated that the repression has been constant and ongoing
12 since the time of Zheng’s hearing in 2001, and Zheng did not
13 submit evidence indicating that the increased repression of
14 Falun Gong practitioners had continued after the 2008
15 Olympics and into 2009. See Siewe v. Gonzales,
480 F.3d
16 160, 167 (2d Cir. 2007) (“where there are two permissible
17 views of the evidence, the fact finder’s choice between them
18 cannot be clearly erroneous”); see also Jian Hui Shao v.
19 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008) (reviewing the
20 BIA’s factual findings regarding changed country conditions
21 under the substantial evidence standard).
22 Finally, given the BIA’s explicit references to the
23 documentation submitted with the motion to reopen, a
3
1 reasonable fact-finder would not be compelled to conclude
2 that the BIA ignored any material. See Wei Guang Wang, 437
3 F.3d at 275 (holding that the BIA is not required to
4 “expressly parse or refute on the record each individual
5 argument or piece of evidence offered by the petitioner” as
6 long as it “has given reasoned consideration to the
7 petition, and made adequate findings” (internal citations
8 omitted)). Accordingly, the BIA did not abuse its
9 discretion by denying Zheng’s motion. See
Ali, 448 F.3d at
10 517.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
23
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