10-3482-ag
    Zeng v. Holder
                                                                                  BIA
                                                                          A077 993 929
                      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
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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
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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 10th day of July, two thousand twelve.

    PRESENT:
             JOHN M. WALKER, JR.,
             ROBERT D. SACK,
             REENA RAGGI,
                 Circuit Judges.
    _______________________________________

    CHANG FAN ZENG,
             Petitioner,

                     v.                                    10-3482-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Michael Brown, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Holly M. Smith, Senior
                                  Litigation Counsel; Joseph D. Hardy,
                                  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 GRANTED.

    Chang Fan Zeng, a native and citizen of the People’s

Republic of China, seeks review of an August 3, 2010

decision of the BIA denying his motion to reopen.   In re

Chang Fan Zeng, No. A077 993 929 (B.I.A. Aug. 3, 2010).     We

assume the parties’ familiarity with the underlying facts

and proceedings, which we reference only as necessary to

explain our decision to grant the petition.

    We review the BIA’s denial of Chen’s motion to reopen

for abuse of discretion, Ali v. Gonzales, 

, 517

(2d Cir. 2006), and the BIA’s determination of changed

country conditions for substantial evidence, Jian Hui Shao

v. Mukasey, 

, 169 (2d Cir. 2008).   An alien must

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

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

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

indisputably untimely because it was filed more than five

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

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

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

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country conditions arising in the country of nationality or

the country to which removal has been ordered, if such

evidence is material and was not available and would not

have been discovered or presented at the previous

proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R.

§ 1003.2(c)(3)(ii).

    In finding that Zeng did not demonstrate changed

country conditions, the BIA found that a village committee

notice and an affidavit from Zeng’s parents purportedly

showing that the Chinese government had become aware of his

practice of Falun Gong and had summoned him home for

punishment did not suffice because “[t]he fact that the

Chinese Government may have become aware of [Zeng]’s changed

personal circumstances does not constitute a change in its

policy toward Falun Gong practitioners and supporters, which

remains the same.”    C.A.R. at 4.    Zeng maintains, to the

contrary, that these facts evidence “changed circumstances

arising in the country of nationality” sufficient to excuse

the untimeliness of his motion.      8 C.F.R § 1003.2(c)(2).   We

have not addressed in a precedential decision the issue

raised here, i.e., whether a change that pertains to a

particular individual in his home country, as opposed to a


                               3
general change in policy, is sufficient to establish the

“changed country conditions” necessary to excuse the 90-day

time limitation on motions to reopen.   While we have

summarily concluded that “[h]ighly localized persecution

. . . generally will not be considered to be a changed

country circumstance,” Mindeng Zheng v. Holder, No. 10-2289-

ag, 

, at *4 n.7 (2d Cir. Mar. 7, 2012)

(summary order); see Duan Ying Huang v. Holder, 358 F. App’x

214, 215–16 (2d Cir. 2009) (summary order); Min Hui Chen v.

Holder, 331 F. App’x 50, 52 (2d Cir. 2009) (summary order),

sister courts appear to have ruled otherwise in published

decisions, see Xiu Zhen Lin v. Mukasey, 

, 597

(7th Cir. 2008) (Posner, J.); Zhang v. U.S. Att’y Gen., 

, 1320 (11th Cir. 2009); Jiang v. U.S. Att’y Gen.,

, 1258 (11th Cir. 2009); see also Joseph v.

Holder, 

, 834 (7th Cir. 2009) (holding that

“plain language of the regulation . . . does not restrict

the concept of ‘changed circumstances’ to some kind of broad

social or political change . . . as opposed to a more

personal or local change”).   Rather than decide the issue

conclusively on the record in this case, we think it prudent

to remand to the BIA so that the agency may decide in the


                              4
first instance whether it credits the evidence Zeng offered

to support his motion.   See Qin Wen Zheng v. Gonzales, 

, 146-49 (2d Cir. 2007).   If it were not to do so,

that may provide an independent reason for denial of the

motion, making it unnecessary for the agency or this court

to address the question identified.   If it were to do so,

however, the agency should then explain how, if at all, its

construction of changed country conditions differs from that

stated by the Seventh and Eleventh Circuits.

    For the foregoing reasons, the petition for review is

GRANTED and the case REMANDED to the BIA for further

proceedings consistent with this order.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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