Filed: Sep. 05, 2012
Latest Update: Feb. 12, 2020
Summary: 11-1017-ag Zheng v. Holder BIA Videla, I.J. A073 185 600 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 TH
Summary: 11-1017-ag Zheng v. Holder BIA Videla, I.J. A073 185 600 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..
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11-1017-ag
Zheng v. Holder
BIA
Videla, I.J.
A073 185 600
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 5th day of September, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 En Zheng,
14 Petitioner,
15
16 v. 11-1017-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Anthony C. Payne, Senior
27 Litigation Counsel; Stuart S.
28 Nickum, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
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 En Zheng, a native and citizen of China, seeks review
6 of a February 14, 2011 order of the BIA, affirming the June
7 22, 2009 decision of Immigration Judge (“IJ”) Gabriel C.
8 Videla, which denied his motion to reopen. In re En Zheng,
9 No. A073 185 600 (BIA Feb. 14, 2011), aff’g No. A073 185 600
10 (Immigr. Ct. N.Y. City June 22, 2009). We assume the
11 parties’ familiarity with the underlying facts and
12 procedural history of the case.
13 We review the denial of a motion to reopen for abuse of
14 discretion. See Debeatham v. Holder, 602 F.3d 481, 484 (2d
15 Cir. 2010) (per curiam). Under the circumstances of this
16 case, we review the decision of the IJ as supplemented by
17 the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d
18 Cir. 2005). When the agency considers relevant evidence of
19 country conditions in evaluating a motion to reopen, we
20 review factual findings under the substantial evidence
21 standard.1 See 8 U.S.C. § 1252(b)(4)(B) (“[T]he
1
Prior to the REAL ID Act of 2005, this case would
have been governed entirely by the transitional rules of
2
1 administrative findings of fact are conclusive unless any
2 reasonable adjudicator would be compelled to conclude to the
3 contrary.”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d
4 Cir. 2008).
5 An alien may move to reopen his case, but must
6 generally do so within 90 days of the entry of the final
7 order of deportation in the underlying proceeding. 8 CFR
8 § 1003.23(b)(1). A motion that does not comply with this
9 time limitation can be brought if the alien establishes both
10 “changed country conditions arising in the country of
11 nationality or the country to which [deportation] has been
12 ordered,”
id. § 1003.23(b)(4)(i), and prima facie
13 eligibility for relief, see Poradisova v. Gonzales, 420 F.3d
the Illegal Immigration Reform and Immigration
Responsibility Act (“IIRIRA”) because Zheng was in
deportation proceedings before April 1, 1997, and the
final order of deportation he is challenging was entered
more than 30 days after September 30, 1996. See IIRIRA
§ 309(c); Mariuta v. Gonzales, 411 F.3d 361, 363 n.3 (2d
Cir. 2005). However, section 106(d) of the REAL ID Act,
Pub. L. No. 109-13, requires that we treat the case as if
it had been filed under the IIRIRA’s permanent rules (as
amended by the REAL ID Act) codified in 8 U.S.C. § 1252.
See Jun Min Zhang v. Gonzales, 457 F.3d 172, 174–75 (2d
Cir. 2006). In any event, the standard of review of
factual findings is the same under both the permanent and
transitional rules. See Zhou Yun Zhang v. INS, 386 F.3d
66, 73 n.7 (2d Cir. 2004), overruled in part on other
grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494
F.3d 296, 305 (2d Cir. 2007) (en banc).
3
1 70, 78 (2d Cir. 2005). Zheng’s 2009 motion to reopen was
2 untimely because the IJ’s deportation order in the
3 underlying proceeding was entered in 1997. He was therefore
4 required to establish a change in country conditions.
5 The IJ, having found that Zheng failed to establish
6 changed country conditions, acted within his discretion in
7 denying Zheng’s motion on the ground that a change in
8 personal circumstances in the United States (i.e., his
9 participation in Christian church services since 2008) was
10 insufficient to excuse his untimely motion. See Wei Guang
11 Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006); cf. Li Yong
12 Zheng v. U.S. Dep’t of Justice,
416 F.3d 129, 130–31 (2d
13 Cir. 2005) (per curiam).
14 Zheng contends that the agency mischaracterized his
15 motion as based on changed personal circumstances rather
16 than on changed country conditions. However, the IJ
17 expressly found that the evidence he submitted was
18 insufficient to establish changed country conditions in
19 China. Likewise, the BIA concluded that Zheng had failed to
20 establish changed country conditions with respect to China’s
21 treatment of Christians and underground churches.
22
4
1 The agency’s finding is supported by substantial
2 evidence. Although some evidence indicates that the Chinese
3 government may have intensified its repression of
4 unregistered religious groups in certain regions in the
5 period leading up to and during the 2008 Summer Olympics,
6 that intensification was not material to Zheng’s motion,
7 which was filed in April 2009, well after the Olympics had
8 concluded. See Jian Hui Shao, 546 F.3d at 169.
9 To the extent that Zheng urges the Court to take
10 judicial notice of an October 2009 Congressional-Executive
11 Commission Report (which is not part of the administrative
12 record and pre-dates the BIA’s decision), we decline the
13 invitation as our review is limited to the agency record,
14 see 8 U.S.C. § 1252(b)(4)(A), and remand for the agency’s
15 consideration would be inappropriate, see Xiao Xing Ni v.
16 Gonzales,
494 F.3d 260, 269–72 (2d Cir. 2007).
17 In any event, a report's statement that oppression of
18 religious minorities intensified during a particular period
19 does not, standing alone, undermine the agency’s finding.
20 The same evidence Zheng relies on also contradicts his
21 argument that conditions in China have materially worsened
22 since his last hearing, as it showed a continuation of
23 China’s policy of controlling religious activity, and that,
5
1 in some regions, unregistered Christian groups have operated
2 openly, with full knowledge of local officials. Evidence
3 pertaining to the country conditions in China at the time of
4 Zheng’s last hearing (i.e., a 1995 U.S. State Department
5 report) also supports the IJ’s finding that China's current
6 policy is a continuation of, rather than a material change
7 in, its treatment of religious activity and, specifically,
8 unregistered churches. Consequently, we do not disturb the
9 agency’s finding. See Jian Hui Shao, 546 F.3d at 171; Siewe
10 v. Gonzales,
480 F.3d 160, 167 (2d Cir. 2007).
11 Zheng argues that his father’s affidavit regarding the
12 arrest of members of an underground church (including a
13 neighbor) “establishes that the recent campaign of religious
14 persecution has spread to [his] region of China,” i.e., the
15 Fuzhou area in the Fujian province. However, this does not
16 represent a material change. As the 1995 State Department
17 report found: “A growing number of [asylum] cases from
18 China, especially from the Fuzhou area in Fujian province,
19 claim persecution on account of religion. Most asylum
20 applications on account of religion are by claimed members
21 of the unsanctioned Christian churches in China, both
22 Catholic and Protestant.” Moreover, the BIA acted within
23 its discretion in giving little weight to his father’s
6
1 affidavit as hearsay from an interested party. Cf. Xiao Ji
2 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
3 2006).
4 As substantial evidence supports the agency’s finding
5 that Zheng failed to establish changed country conditions to
6 excuse his untimely motion to reopen, we need not address
7 whether the agency improperly discounted evidence of his
8 Christian practice, or whether he is prima facie eligible
9 for relief.
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and Zheng’s pending motion for a stay of removal
14 in this petition is DISMISSED as moot. Any pending request
15 for oral argument in this petition is DENIED in accordance
16 with Federal Rule of Appellate Procedure 34(a)(2), and
17 Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
7
