Filed: Jan. 07, 2010
Latest Update: Mar. 02, 2020
Summary: 09-2040-ag Zhang v. Holder BIA A073 534 143 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: 09-2040-ag Zhang v. Holder BIA A073 534 143 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 ..
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09-2040-ag
Zhang v. Holder
BIA
A073 534 143
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 7 th day of January, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 GUIDO CALABRESI,
10 DEBRA ANN LIVINGSTON,
11 Circuit Judges.
12 _________________________________________
13
14 QIAO YONG ZHANG,
15 Petitioner,
16
17 v. 09-2040-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _________________________________________
23
24 FOR PETITIONER: Gary J. Yerman, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; M. Jocelyn Lopez Wright,
28 Senior Litigation Counsel; Jason
29 Wisecup, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
33
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 Petitioner Qiao Yong Zhang, a native and citizen of the
6 People’s Republic of China, seeks review of an April 29,
7 2009 order of the BIA denying her motion to reopen. In re
8 Qiao Yong Zhang, No. A073 534 143 (B.I.A. Apr. 29, 2009).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d
13 Cir. 2005) (per curiam). When the BIA considers relevant
14 evidence of country conditions in evaluating a motion to
15 reopen, we review the BIA’s factual findings under the
16 substantial evidence standard. See Jian Hui Shao v.
17 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
18 There is no dispute that Zhang’s motion to reopen was
19 both untimely and number-barred. See 8 C.F.R.
20 § 1003.2(c)(2). However, there is no time or numerical
21 limitation for filing a motion to reopen if it is “based on
22 changed circumstances arising in the country of nationality
23 or in the country to which deportation has been ordered, if
2
1 such evidence is material and was not available and could
2 not have been discovered or presented at the previous
3 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably
4 found that Zhang’s motion to reopen did not qualify for such
5 an exception.
6 The BIA did not abuse its discretion in finding that
7 Zhang failed to establish changed country conditions in
8 China based on her baptism and “continued practice” of
9 Christianity in the United States. See Li Yong Zheng v.
10 U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)
11 (holding that a change in personal circumstances in the
12 United States does not constitute a change in country
13 conditions, and therefore does not establish an exception to
14 the filing deadline for motions to reopen). Moreover, the
15 BIA reasonably declined to reopen based on the country
16 conditions evidence in the record, including the State
17 Department’s 2008 Religious Freedom Report for China. See
18 U.S. Department of State 2008 Religious Freedom Report for
19 China; see also 2007 Annual Report of the Congressional-
20 Executive Commission on China. Although it did not discuss
21 that evidence in detail, it was not required to do so. See
22 Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338
23 n.17 (2d Cir. 2006) (presuming that the agency has taken
3
1 into account all evidence presented, unless the record
2 “compellingly suggests otherwise”). This is particularly so
3 because the evidence Zhang submitted was the same the agency
4 is asked to consider “time and again.” See Wei Guang Wang
5 v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (holding that the
6 BIA does not abuse its discretion by giving summary
7 consideration to evidence presented in a motion to reopen,
8 particularly when dealing with evidence which the BIA is
9 asked to repeatedly consider). Therefore, the BIA did not
10 abuse its discretion in denying Zhang’s motion to reopen.
11 See 8 C.F.R. § 1003.2(c)(3)(ii).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stay of
14 removal that the Court previously granted in this petition
15 is VACATED, and any pending motion for a stay of removal in
16 this petition is DISMISSED as moot. Any pending request for
17 oral argument in this petition is DENIED in accordance with
18 Federal Rule of Appellate Procedure 34(a)(2), and Second
19 Circuit Local Rule 34(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23 By:___________________________
4
