10-4345-ag
         Zeng v. Holder
                                                                                       BIA
                                                                               A095 369 354
                           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 26th day of January, two thousand twelve,
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RAYMOND J. LOHIER, JR.,
10                SUSAN L. CARNEY,
11                     Circuit Judges.
12       _______________________________________
13
14       WEN LAN ZENG,
15                Petitioner,
16
17                        v.                                    10-4345-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:               Lee Ratner, Law Offices of Michael
25                                     Brown, New York, N.Y.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Mark C. Walters, Senior
29                                     Litigation Counsel; Daniel I.
 1                             Smulow, Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.

 5       UPON DUE CONSIDERATION of this petition for review of a

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

 7   hereby ORDERED, ADJUDGED, AND DECREED that the petition for

 8   review is DENIED.

 9       Wen Lan Zeng, a native and citizen of the People’s

10   Republic of China, seeks review of an October 5, 2010,

11   decision of the BIA denying her motion to reopen. In re Wen

12   Lan Zeng, No. A095 369 354 (B.I.A. Oct. 5, 2010).     We assume

13   the parties’ familiarity with the underlying facts and

14   procedural history of this case.

15       We review the BIA’s denial of Zeng’s motion to reopen

16   for abuse of discretion.     Ali v. Gonzales, 

, 517

17   (2d Cir. 2006).     As a general rule, an alien must file a

18   motion to reopen within 90 days of the agency’s final

19   administrative decision.     8 U.S.C. § 1229a(c)(7)(C)(i);

20   8 C.F.R. § 1003.2(c)(2).     Although Zeng’s motion was

21   indisputably untimely because it was filed more than five

22   years after the agency’s final order of removal, see

23   8 U.S.C. § 1229a(c)(7)(C)(i), there is no time limitation

24   for filing a motion to reopen if it is “based on changed

                                     2
 1   country conditions arising in the country of nationality or

 2   the country to which removal has been ordered, if such

 3   evidence is material and was not available and would not

 4   have been discovered or presented at the previous

 5   proceeding.”     8 U.S.C. § 1229a(c)(7)(C)(ii).

 6       However, Zeng’s activities in the United States did not

 7   constitute changed conditions in China excusing the untimely

 8   filing of her motion to reopen.     See Li Yong Zheng v. U.S.

 9   Dep’t of Justice, 

, 130-31 (2d Cir. 2005).

10   Moreover, the BIA did not abuse its discretion in finding

11   that Zeng failed to provide credible, material evidence of

12   changed circumstances in China based on local Chinese

13   government officials’ discovery of her activities in the

14   United States.     In making its finding and declining to

15   credit the only evidence of such circumstances, the BIA

16   reasonably relied on the IJ’s underlying adverse credibility

17   determination.     See Qin Wen Zheng v. Gonzales, 

,

18   147 (2d Cir. 2007) (holding that the BIA may decline to

19   credit documentary evidence submitted with a motion to

20   reopen by an alien who was found not credible in the

21   underlying proceeding) (citing Siewe v. Gonzales, 

  160, 170 (2d Cir. 2007)).     Accordingly, because the BIA did


                                     3
 1   not err in finding that Zeng failed to demonstrate changed

 2   country conditions in China, it did not abuse its discretion

 3   in denying her motion to reopen as untimely.

 4       For the foregoing reasons, the petition for review is

 5   DENIED.   As we have completed our review, any stay of

 6   removal that the Court previously granted in this petition

 7   is VACATED, and any pending motion for a stay of removal in

 8   this petition is DISMISSED as moot. Any pending request for

 9   oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2) and Second

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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