Filed: Apr. 28, 2016
Latest Update: Mar. 02, 2020
Summary: 14-3132 Weng v. Lynch BIA A073 574 467 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 “SUMMAR
Summary: 14-3132 Weng v. Lynch BIA A073 574 467 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..
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14-3132
Weng v. Lynch
BIA
A073 574 467
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of April, two thousand sixteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 ZHEN YIN WENG,
14 Petitioner,
15
16 v. 14-3132
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Theodore N. Cox, New York, New York.
24
25 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
26 Assistant Attorney General; Stephen
27 J. Flynn, Assistant Director; Ann M.
28 Welhaf, 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 is
4 DENIED.
5 Petitioner Zhen Yin Weng, a native and citizen of the
6 People’s Republic of China, seeks review of an August 5, 2014,
7 decision of the BIA, denying his motion to reopen. In re Zhen
8 Yin Weng, No. A073 574 467 (B.I.A. Aug. 5, 2014). We assume
9 the parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 The applicable standards of review are well established.
12 See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.
13 2008). It is undisputed that Weng’s motion to reopen was
14 untimely filed more than fifteen years after his deportation
15 order became final. See 8 U.S.C. § 1229a(c)(7)(C)(i);
16 8 C.F.R. § 1003.2(c)(2). However, the time limitation for
17 filing a motion to reopen does not apply if the motion “is based
18 on changed country conditions arising in the country of
19 nationality or the country to which removal has been ordered,
20 if such evidence is material and was not available and would
21 not have been discovered or presented at the previous
22 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
23 8 C.F.R. § 1003.2(c)(3)(ii).
2
1 The BIA did not err in finding that Weng failed to
2 demonstrate a material change in the enforcement of the family
3 planning policy in his home province of Fujian since his 1997
4 hearing before the IJ. See In re S-Y-G-, 24 I. & N. Dec. 247,
5 253 (B.I.A. 2007) (“In determining whether evidence
6 accompanying a motion to reopen demonstrates a material change
7 in country conditions that would justify reopening, [the BIA]
8 compare[s] the evidence of country conditions submitted with
9 the motion to those that existed at the time of the merits
10 hearing below.”); see also Jian Hui Shao, 546 F.3d at 159-66
11 (noting that country conditions evidence from 1998 to 2007
12 indicated that enforcement of the family planning policy was
13 generally lax in Fujian Province with the occasional reports
14 of the use of force). Weng’s evidence (including the Annual
15 Reports of the Congressional-Executive Commission on China and
16 local family planning directives) establishes that, in Fujian
17 Province, economic rewards and penalties continue to be the
18 primary means of ensuring compliance with the mandatory fines,
19 birth control measures, abortions, and sterilizations required
20 by the policy. In light of this evidence, a few isolated
21 reports of persecutory enforcement did not compel the BIA to
22 find a material change in country conditions. See Jian Hui
23
Shao, 546 F.3d at 155-56, 160, 172-73.
3
1 Accordingly, because the agency reasonably found that Weng
2 did not demonstrate a material change in conditions in China,
3 it did not abuse its discretion in denying his motion to reopen
4 as untimely. See 8 U.S.C. § 1229a(c)(7)(C); see also In re
5 S-Y-G-, 24 I. & N. Dec. at 253, 257.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, Weng’s pending
8 motions for a stay of removal and to compel his return are
9 DISMISSED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
4
