11-4630 BIA

Zhao v. Holder A073 043 845

 

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 Patrick Moynihan United

States Courthouse, 500 Pearl Street, in the City of New

York, New York, on the 20th day of July, two thousand

twelve.

PRESENT:

RALPH K. WINTER,

ROBERT D. SACK,

PETER W. HALL,

Circuit Judges.

_____________________________________

WEI ZHAO,

Petitioner, 

 v. 11-4630

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_____________________________________

FOR PETITIONER: Thomas D. Barra, New York, New York. 

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; David V. Bernal,

Assistant Director; Yedidya Cohen,

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.

Petitioner Wei Zhao, a native and citizen of the

People’s Republic of China, seeks review of the October 11,

2011, order of the BIA denying his motion to reopen. 

In re Wei Zhao, No. A073 043 845 (B.I.A. Oct. 11, 2011). 

We assume the parties’ familiarity with the underlying facts

and procedural history of the case. 

We review the BIA’s denial of a motion to reopen for

abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

Cir. 2005) (per curiam). An alien may file one motion to

reopen, generally no later than 90 days after the date on

which the final administrative decision was rendered in the

proceedings sought to be reopened. 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Here,

there is no dispute that Zhao’s 2011 motion was untimely

because the agency issued the final administrative order in

2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). The time limitation does not apply,

however, to a motion to reopen if it is “based on changed

circumstances arising in the country of nationality or in

the country to which deportation has been ordered, if such

evidence is material and was not available and could not

have been discovered or presented at the previous hearing.” 

8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

§ 1229a(c)(7)(C)(ii). 

The BIA did not abuse its discretion in denying Zhao’s

motion as untimely as he failed to demonstrate a material

change in conditions in China. As an initial matter, the

BIA did not err in concluding that Zhao’s participation in

Falun Gong-related activities in the United States is not a

changed circumstance arising in China. See Li Yong Zheng v.

U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)

(explaining that a change in “personal circumstances in the

United States” did not constitute a change in country

conditions excusing the filing deadline for motions to

reopen); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-

74 (2d Cir. 2006) (“A self-induced change in personal

circumstances cannot suffice [to reopen removal

proceedings].”).

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Moreover, substantial evidence supports the BIA’s

determination that the country conditions evidence Zhao

submitted in support of his motion to reopen describing an

intensification in the Chinese government’s repression of

Falun Gong practitioners in advance of, and during, the 2008

Beijing Olympics was not material to Zhao’s claim that he

feared future persecution if returned to China because none

of this evidence mentioned an intensification of persecution

of Falun Gong practitioners in Zhao’s home province of

Fujian. See Jian Hui Shao v. Mukasey, 546 F.3d 138,142,

149, 169 (2d Cir. 2008) (reviewing the BIA’s factual

findings regarding changed country conditions under the

substantial evidence standard and finding no error in BIA’s

evidentiary framework requiring applicant to demonstrate

that enforcement of family planning policy is carried out in

local area in a manner that would give rise to a

well-founded fear of persecution because of variations in

the enforcement of that policy). 

Additionally, the BIA reasonably determined that the

record did not demonstrate Zhao’s prima facie eligibility

for relief. See INS v. Abudu, 485 U.S. 94, 104 (1988)

(holding that BIA may deny a motion to reopen on ground that

movant has not established prima facie eligibility for

underlying relief sought). Indeed, as the BIA found, Zhao

failed to demonstrate an objectively reasonable fear of

persecution because he did not present any evidence that

Chinese officials were aware, or would become aware, of his

participation in Falun Gong-related activities in the United

States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

(2d Cir. 2008) (holding that applicant may establish

eligibility for asylum based exclusively on activities

undertaken after arrival in United States so long as he

demonstrates that “authorities in his country of nationality

are either aware of his activities or likely to become aware

of his activities”).

Because Zhao failed to present material evidence of a

material change in conditions, or establish his prima facie

eligibility for relief, the BIA did not abuse its discretion

in denying Zhao’s motion to reopen as untimely. See 8

U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii);

see also Abudu, 485 U.S. at 104.

3
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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