13-208
    Zhang v. Lynch
                                                                                  BIA
                                                                          A097-745-572
                      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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 30th day of March, two thousand sixteen.

    PRESENT:
             ROSEMARY S. POOLER,
             ROBERT D. SACK,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    LIANG SHUI ZHANG,
             Petitioner,

                     v.                                    13-208
                                                           NAC
    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL1,
             Respondent.
    _____________________________________


    FOR PETITIONER:               Oleh R. Tustaniwsky, Brooklyn, NY.



                 1
               Loretta E. Lynch, is automatically substituted as the
        respondent in this case pursuant to Federal Rule of Appellate
        Procedure 43(c)(2).
FOR RESPONDENT:        Stuart F. Delerey, Assistant
                       Attorney General; William C.
                       Peachey, Assistant Director;
                       Jonathan Robbins, Trial Attorney,
                       Office of Immigration Litigation,
                       United States Department of Justice,
                       Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Liang Shui Zhang, a native and citizen of the People’s

Republic of China, seeks review of December 31, 2012,

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

Liang Shui Zhang, No. A097 745 572 (B.I.A. Dec. 31, 2012).

We assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    There is no dispute that Zhang’s motion to reopen,

filed four years after the conclusion of removal

proceedings, was untimely.   See 8 U.S.C. § 1229a(c)(7)(C)(i)

(requiring an alien seeking to reopen proceedings to file a

motion to reopen no later than 90 days after the date on

which the final administrative decision was rendered); see

also 8 C.F.R. § 1003.2(c)(2) (same).   Accordingly, to obtain

reopening in order to apply for asylum based on his

political activities in the United States, Zhang was

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required to establish a change in conditions in China.      8

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

§ 1003.2(c)(3).

    Zhang’s principal argument is that the Chinese

government’s awareness of his affiliation with the Party for

Freedom and Democracy in China constitutes “changed country

conditions” within the meaning of § 1229a(c)(7)(C)(ii).         It

is an open question “whether a change that pertains to a

particular individual in his home country, as opposed to a

general change in policy, is sufficient to establish the

‘changed country conditions’ necessary to excuse the 90-day

time limitation on motions to reopen.”   Chang Fan Zeng v.

Holder, 487 F. App’x 643, 644 (2d Cir. 2012) (summary

order).   We decline to reach the legal issue of whether the

Chinese government’s awareness of Zhang’s activities can

satisfy the changed conditions requirement.   Instead, we

find no error in the BIA’s determination that Zhang’s

evidence was not entitled to weight.

    We generally defer to the agency’s factual findings.

See Xiao Ji Chen v. DOJ, 

, 342 (2d Cir. 2006)

(holding that the weight afforded to the applicant’s

evidence in immigration proceedings lies largely within the


                              3
discretion of the agency); see also Castro v. Holder, 

, 99 (2d Cir. 2010) (“This standard requires a

certain minimal level of analysis . . . as well as some

indication that the [agency] considered material evidence

supporting a petitioner’s claim.” (internal quotation marks

omitted)).   Zhang offered a letter from his father attesting

to purported threats by Chinese authorities related to

Zhang’s political activity; the opinion of Ni Yuxian, the

Chairman for the PFDC who resides here in the United States,

regarding what he believed would happen to Zhang in China;

and several documents and photographs demonstrating Zhang’s

membership in the PFDC.   The BIA determined this evidence

was not persuasive.

    The BIA did not abuse its discretion in finding that

the letter from Zhang’s father was not “of sufficient

evidentiary worth to support reopening these proceedings.”

See Matter of H-L-H & Z-Y-Z-, 25 I.& N. Dec. 209, 215 (BIA

2010) (giving diminished evidentiary weight to letters from

relatives because they were from interested witnesses not

subject to cross-examination), rev’d on other grounds by Hui

Lin Huang v. Holder, 

(2d Cir. 2012).2

      2
        In Chang Fan Zeng v. Holder, 487 F. App’x 643 (2d
  Cir. 2012), and Shin Guo Chen v. Holder, F. App’x 659 (2d
                              4
Furthermore, it was not error for the BIA to decline to rely

on the opinion proffered by Ni, because, as it noted, he was

not resident in China, lacked any personal knowledge as to

the treatment of political dissidents there, and provided no

basis upon which the agency could infer that he was

qualified as an expert on such matters.

    The BIA’s rejection of the documents demonstrating

Zhang’s involvement in the PFDC was conclusory: it stated

that they “have not been authenticated pursuant to 8 C.F.R.

§ 1287.6, nor in any other manner, and are not considered

genuine, authentic, and objectively reasonable evidence.”

Arguably, this was an abuse of discretion.   See Anderson v.

McElroy, 

, 806 (2d Cir. 1992) (“When faced with

cursory, summary or conclusory statements from the BIA, we

cannot presume anything other than such an abuse of

discretion, since the BIA’s denial of relief can be affirmed

only on the basis articulated in the decision.” (internal

quotation marks omitted)).   However, even assuming that the

BIA’s explanation for rejecting the documents was


  Cir. 2012, we remanded cases arguing a change in country
  conditions relating to an individual for the BIA to
  assess in the first instance the credibility of the
  evidence offered in support of the claim. Such a remand
  is not necessary here because the BIA has assessed and
  rejected the credibility of the evidence offered.
                             5
insufficient, remand is unnecessary, as the evidence goes

only to Zhang’s activities in the United States, not to any

change in China.   See Shunfu Li v. Mukasey, 

,

150 (2d Cir. 2008) (holding that remand is futile where the

Court can confidently “predict that the agency would reach

the same decision absent the errors that were made”

(internal quotation marks and citations omitted)).

    Furthermore, as in H-L-H-, the BIA’s decision not to

give weight to the evidence is supported by the country

conditions evidence.   Zhang’s evidence of political

persecution pertained to individuals engaged in political

activity in China, not the United States, and therefore did

not demonstrate persecution of similarly-situated

individuals sufficient to support his alleged fear.    See 8

C.F.R. § 1208.13(b)(2)(iii).

    Accordingly, the petition for review is DENIED.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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