10-2501-ag
    Zhang v. Holder
                                                                                  BIA
                                                                          A070 528 959
                       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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 26th day of August, two thousand eleven.

    PRESENT:
             REENA RAGGI,
             GERARD E. LYNCH,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _______________________________________

    JUN-LAN ZHANG,
                  Petitioner,

                      v.                                   10-2501-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
                  Respondent.
    _______________________________________

    FOR PETITIONER:               Peter L. Quan, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Richard M. Evans, Assistant
                                  Director; Benjamin J. Zeitlin, Trial
                                  Attorney, Office of Immigration
                                  Litigation, 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 in part and DISMISSED in part.

    Jun-Lan Zhang, a citizen of the People’s Republic of

China, seeks review of a June 1, 2010 order of the BIA denying

his motion to reopen.     See In re Jun-Lan Zhang, No. A070 528

959 (B.I.A. June 1, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

    We review the BIA’s denial of reopening deferentially for

abuse of discretion.     See Jian Hui Shao v. Mukasey, 

, 169 (2d Cir. 2008).      An alien may file one motion to

reopen within 90 days of the final administrative decision.

See 8 U.S.C. § 1229a(c)(7)(c)(i); 8 C.F.R. § 1003.2(c)(2).

Although Zhang’s third motion was indisputably untimely and

number-barred, such limitations do not apply if an applicant

demonstrates materially “changed country conditions arising in

the country of nationality.”       8 U.S.C. § 1229a(c)(7)(C)(ii);

see also 8 C.F.R. § 1003.2(c)(3)(ii).

    Zhang submits that a purported notice from government

officials in Houyu County asking him to “[p]lease come back to

China to accept the punishment as soon as possible” for his

“support[]   for   the   ‘Jun[e]     4th   Activity,’”   J.A.   31,

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demonstrated a material change in country conditions, see

Pet’r’s Br. at 7-8.        We are not persuaded.             Zhang did not

describe how or when he received this notice, or explain why

the Chinese government would be interested in him nearly

twenty    years   after   his    alleged    participation          in   student

democracy activities.         Moreover, while the notice might be

evidence of continuing persecution of political dissidents by

the    Chinese    government,     Zhang     did    not    explain       how   it

demonstrated a change in the treatment of dissidents.                         See

Jian Hui Shao v. 

.               Indeed, Zhang did

not even mention the notice in his affidavit, which asserted

that    Zhang    feared   persecution      “[b]ecause       [he]    illegally

departed from China.”         J.A. 29.     In these circumstances, the

BIA reasonably concluded that the notice was insufficient to

establish materially changed country conditions.                   See Xiao Ji

Chen v. U.S. Dep’t of Justice, 

, 342 (2d Cir.

2006) (observing that weight afforded to applicant’s evidence

in     immigration    proceedings        lies     largely    within       BIA’s

discretion).       Accordingly, the agency did not abuse its

discretion in denying reopening.

       Zhang contends that he was deprived of due process when

the    immigration    judge     (“IJ”)    denied    his     initial     asylum

application in January 2001 without sufficiently considering

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his testimony.    The IJ’s decision, however, is not properly

before this Court.       See, e.g., Ke Zhen Zhao v. U.S. Dep’t of

Justice, 

, 90 (2d Cir. 2001); see also Stone v.

INS, 

, 405-06 (1995).          Further, Zhang failed to

exhaust this due process challenge before the BIA. See Foster

v. INS, 

, 77-78 (2d Cir. 2004); Theodoropoulos v.

INS, 

, 172 (2d Cir. 2004) (describing exhaustion

requirements in habeas proceeding).             Accordingly, we lack

jurisdiction to consider this claim, and we dismiss the

petition to that extent.

     For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.           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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