Filed: Dec. 04, 2012
Latest Update: Mar. 26, 2017
Summary: 11-3374-ag Zheng v. Holder BIA A096 425 876 A096 425 877 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: 11-3374-ag Zheng v. Holder BIA A096 425 876 A096 425 877 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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11-3374-ag
Zheng v. Holder
BIA
A096 425 876
A096 425 877
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 4th day of December, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 MING ZHENG, JAI YONG ZHENG, AKA JA YUN
14 ZHANG, AKA JA YUN ZHENG, AKA JIA YUN
15 ZHENG, AKA JIA YONG ZHENG,
16 Petitioners,
17
18 v. 11-3374-ag
19 NAC
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _______________________________________
24
25 FOR PETITIONER: Vlad Kuzmin, Kuzmin & Associates
26 P.C., New York, New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Carol Federighi, John W.
1 Blakeley, Senior Litigation Counsel;
2 Sul Kee Kim, Law Clerk, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
9 review is DENIED.
10 Petitioners Ming Zheng (“Zheng”) and Jai Yong Zheng,
11 natives and citizens of the People’s Republic of China, seek
12 review of a July 20, 2011, decision of the BIA denying
13 Zheng’s motion to reopen. In re Ming Zheng, Jai Yong Zheng,
14 Nos. A096 425 876/877 (B.I.A. July 20, 2011). We assume the
15 parties’ familiarity with the underlying facts and
16 procedural history of this case.
17 We review the BIA’s denial of a motion to reopen for
18 abuse of discretion, mindful of the Supreme Court’s
19 admonition that such motions are “disfavored.” Ali v.
20 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
21 Doherty,
502 U.S. 314, 322-23 (1992)). Aliens seeking to
22 reopen proceedings may file one motion to reopen no later
23 than 90 days after the date on which the final
24 administrative decision was rendered. 8 U.S.C.
2
1 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is
2 undisputed that Zheng’s September 2010 motion to reopen was
3 untimely, because the BIA issued its final order of removal
4 in 2006. However, the time and number limitations for
5 filing a motion to reopen do not apply if the motion is
6 “based on changed country conditions arising in the country
7 of nationality or the country to which removal has been
8 ordered, if such evidence is material and was not available
9 and would not have been discovered or presented at the
10 previous proceeding[s].” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
11 also 8 C.F.R. § 1003.2(c)(3)(ii).
12 In this case, the agency did not abuse its discretion
13 in denying Zheng’s motion to reopen as untimely.
14 Substantial evidence supports the agency’s conclusion that
15 the background materials do not demonstrate a change in
16 country conditions material to Zheng’s claim that she is
17 eligible for relief. See Jian Hui Shao v. Mukasey, 546 F.3d
18 138, 169 (2d Cir. 2008) (applying the substantial evidence
19 standard to the agency’s determination of whether there was
20 a change in country conditions). Zheng’s decision to begin
21 practicing Christianity in the United States constitutes a
22 self-induced change in personal circumstances that did not
3
1 merit an exception to the time and number bars applicable to
2 motions to reopen. See Wei Guang Wang v. BIA, 437 F.3d 270,
3 274 (2d Cir. 2006).
4 Further, the BIA reasonably gave limited evidentiary
5 weight to the letters and documents from China that Zheng
6 submitted in support of her application. The BIA’s decision
7 to give limited weight to this evidence is entitled to
8 particular deference, see Xiao Ji Chen v. U.S. Dep’t of
9 Justice,
471 F.3d 315, 342 (2d Cir. 2006), and, here,
10 nothing in the record compels the conclusion that the BIA
11 erred, as it relied on the IJ’s underlying adverse
12 credibility determination to decline to credit Zheng’s
13 corroborating evidence, see Qin Wen Zheng v. Gonzales, 500
14 F.3d 143, 146-49 (2d Cir. 2007) (relying on the doctrine
15 falsus in uno, falsus in omnibus to conclude that the agency
16 may decline to credit documentary evidence submitted with a
17 motion to reopen by an alien who was found not credible in
18 the underlying proceeding) (citing Siewe v. Gonzales, 480
19 F.3d 160, 170 (2d Cir. 2007)). As we previously upheld the
20 agency’s adverse credibility determination, that
21 determination constitutes the law of the case and we decline
22 to revisit it. See Ming Zhang v. Holder,
585 F.3d 715, 726
23 (2d Cir. 2009).
4
1 Finally, although Zheng provided articles describing
2 the harassment, arrest and interrogation of members of
3 underground churches in China, those articles did not
4 describe a change in country conditions since Zheng’s 2005
5 hearing. See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253
6 (BIA 2007) (holding that in evaluating evidence of changed
7 country conditions, the BIA “compare[s] the evidence of
8 country conditions submitted with the motion to those that
9 existed at the time of the merits hearing below”). Rather,
10 the 1998 U.S. State Department profile of asylum claims and
11 country conditions in China submitted for Zheng’s 2005
12 merits hearing reflects that, between 1994 and 1997, the
13 government of China was engaging in a policy of repressing
14 unregistered church activity, including surveillance,
15 detentions, arrests and destruction of property. The 2002
16 U.S. State Department report on country conditions in China
17 – also submitted for Zheng’s 2005 merits hearing – describes
18 similar conduct by the Chinese government. Although the 2008
19 U.S. State Department report submitted with Zheng’s motion
20 to reopen reflects that religious repression continues in
21 China, nothing in these materials reflects that the
22 treatment of Christians in China has worsened. Accordingly,
23 as Zheng failed to demonstrate a change in conditions, the
5
1 BIA did not abuse its discretion in denying her motion to
2 reopen as untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii);
3 8 C.F.R. § 1003.2(c)(2), (3).
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 DENIED 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
6
