09-2505-ag
    Huang v. Holder
                                                                                  BIA
                                                                          A074 234 675
                       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 12th day of May, two thousand eleven.

    PRESENT:
             ROGER J. MINER,
             ROBERT D. SACK,
             REENA RAGGI,
                Circuit Judges.
    _______________________________________

    YUAN ZEE HUANG, a.k.a. YONG ZHI HUANG,
             Petitioner,

                      v.                                   09-2505-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; Emily Anne Radford,
                                  Assistant Director; Christopher P.
                                  McGreal, 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.

    Yuan Zee Huang, a native and citizen of the People’s

Republic of China, seeks review of a May 28, 2009 order of

the BIA denying his motion to reopen. In re Yuan Zee Huang,

No. A074 234 675 (B.I.A. May 28, 2009).     We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

    Generally, we review the BIA’s denial of Huang’s motion

to reopen for abuse of discretion, mindful that such motions

are disfavored.     See Ali v. Gonzales, 

, 517 (2d

Cir. 2006).   In this case, however, the fugitive

disentitlement doctrine arguably applies.     See generally Nen

Di Wu v. Holder, 

, 100-01 (2d Cir. 2010); Gao v.

Gonzales, 

, 175-77 (2d Cir. 2007).      On September

8, 1998, the former Immigration and Naturalization Service

(“INS”) sent via certified mail, return receipt requested, a

notice to Huang directing him to surrender for deportation

on October 16, 1998.    Huang did not claim the notice or

surrender as directed but instead filed a motion to reopen

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over ten years later.    In an affidavit submitted with his

motion to reopen, Huang did not deny receiving the surrender

notice but asserted that he “decided to stay in the U.S. and

wait for a new opportunity to adjust [his] immigration

status.”    Although Huang now contends that the surrender

notice was not delivered, he offers no evidence to overcome

the presumption of delivery that we ordinarily accord to

notices sent via certified mail in immigration proceedings,

e.g., Lopes v. Gonzales, 

, 85 (2d Cir. 2006)

(notice of removal hearing), even where such notice is

returned unclaimed, see Fuentes-Argueta v. INS, 

, 871-72 (2d Cir. 1996).1

    We need not decide whether to exercise our equitable

discretion pursuant to the fugitive disentitlement doctrine

because, in any event, there is no merit to Huang’s

petition.    An alien may file only one motion to reopen and

must do so within 90 days of the final administrative

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


       1
        As the government notes, a copy of the surrender
  notice was also sent, and successfully delivered, to
  Huang’s last counsel of record. Counsel represented
  Huang before the Immigration Court, but Huang proceeded
  pro se before the BIA. Thus, it is unclear whether
  counsel would have been in a position to inform Huang of
  his obligation to surrender.
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Although Huang’s motion was indisputably untimely, there is

no time or numerical limitation if the alien establishes

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).

    The BIA did not abuse its discretion in finding that

the birth of Huang’s U.S. citizen son, as well as his

alleged practice of Falun Gong in the United States,

constituted a change in his personal circumstances, rather

than a change in country conditions sufficient to excuse the

untimely filing of his motion to reopen.   See Jian Hui Shao

v. Mukasey, 

, 169-72 (2d Cir. 2008); Wei Guang

Wang v. BIA, 

, 273-74 (2d Cir. 2006).

    With respect to Huang’s claim based on his alleged

violation of the family planning policy, he abandoned any

challenge to the BIA’s dispositive finding that he failed to

establish changed country conditions by not raising the

issue in his brief to this court.   See Zhang v. Gonzales,

, 546 n.7 (2d Cir. 2005).

    With respect to Huang’s Falun Gong claim, there is no

merit to his argument that “while it is true that the

authorities launched [their] campaign of crackdown on Falun

Gong several years ago,” he could establish changed country

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conditions “so long as the authorities[’] continuous

suppression bears a material relationship to [his]

successive asylum claim.”     Pet’r’s Br. 20-21 (emphasis

added).   To the contrary, the plain language of the

regulation required Huang to demonstrate a material

change in country conditions since the time of his hearing.

8 C.F.R. § 1003.2(c)(3)(ii).     The BIA also reasonably

declined to credit an unauthenticated notice, purportedly

issued by the village committee in Huang’s hometown in

China, based on the Immigration Judge’s underlying adverse

credibility determination.     See Qin Wen Zheng v. Gonzales,

, 147 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DENIED.   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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