12-2484 Lian v. Holder BIA A077 660 310 A079 306 964 

### 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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of September, two thousand thirteen.** 4 5 6 **PRESENT:** 7 **RICHARD C. WESLEY,** 8 **GERARD E. LYNCH,** 9 **CHRISTOPHER F. DRONEY,** 10 Circuit Judges**.** 11

**_____________________________________** 12 13 **DAN YU LIAN, QING DENG ZHENG,** 14 Petitioner**s,** 15 16 **v. 12-2484** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_____________________________________** 22 23 **FOR PETITIONERS: Adedayo O. Idowu, New York, New** 24 **York.** 25 26 **FOR RESPONDENT: Stuart F. Delery, Principal Deputy** 27 **Assistant Attorney General; Francis** 28 **W. Fraser, Senior Litigation** 29 **Counsel; W. Daniel Shieh, Trial** 30**Attorney, Office of Immigration** 1 **Litigation, United States Department** 2 **of Justice, Washington, D.C.** 3 UPON DUE CONSIDERATION of this petition for review of a 4 decision of the Board of Immigration Appeals (“BIA”), it is 5 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 6 review is DENIED. 7 Dan Yu Lian and Qing Deng Zheng, natives and citizens 8 of the People’s Republic of China, seek review of a May 25, 9 2012, decision of the BIA denying their motion to reopen. 10 In re Dan Yu Lian, Qing Deng Zheng, Nos. A077 660 310, A079 11 306 964 (B.I.A. May 25, 2012). We assume the parties’ 12 familiarity with the underlying facts and procedural history 13 of this case. 14 We review the BIA’s denial of a motion to reopen for 15 abuse of discretion, mindful of the Supreme Court’s 16 admonition that such motions are “disfavored.” Ali v. 17 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v. 18 Doherty, 502 U.S. 314, 322-23 (1992)). When the BIA 19 considers relevant evidence of country conditions in 20 evaluating a motion to reopen, we review the BIA’s factual 21 findings under the substantial evidence standard. See Shao 22 v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 23

2The BIA did not err in denying Lian and Zheng’s motion 1 to reopen as untimely and number-barred. Aliens may file 2 only one motion to reopen within 90 days of the agency’s 3 final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), 4 (C)(i); 8 C.F.R. § 1003.2(c)(2). Although their motion was 5 indisputably untimely and number-barred because it was filed 6 more than six years after the agency’s final order of 7 removal and it was their third such motion, see8 U.S.C. 8 § 1229a(c)(7)(A), (C)(i), there are no time or numerical 9 limitations for filing a motion to reopen if it is “based on 10 changed country conditions arising in the country of 11 nationality or the country to which removal has been 12 ordered, if such evidence is material and was not available 13 and would not have been discovered or presented at the 14 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 15 also 8 C.F.R. § 1003.2(c)(3)(ii). 16 The BIA did not err in concluding that Lian’s newly 17 commenced Falun Gong practice constituted a change in her 18 personal circumstances rather than a change in country 19 conditions sufficient to excuse the applicable limitations. 20
See Zheng v. U.S. Dep’t of Justice , 416 F.3d 129, 130-31 (2d 21 Cir. 2005); see also Yuen Jin v. Mukasey, 538 F.3d 143, 155 22

3(2d Cir. 2008). Moreover, the BIA reasonably found that 1 Lian and Zheng’s evidence did not demonstrate a material 2 change in country conditions because that evidence did not 3 indicate that conditions had worsened for Falun Gong 4 practitioners in China since the time of their hearing 5 before the IJ. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 6 Shao , 546 F.3d at 169-72. Accordingly, the BIA did not 7 abuse its discretion in denying Lian and Zheng’s motion to 8 reopen as untimely and number-barred. See 8 U.S.C. 9 § 1229a(c)(7)(A), (C). 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 any pending motion for a stay of removal in 14 this petition is DISMISSED as moot. Any pending request for 15 oral argument in this petition is DENIED in accordance with 16 Federal Rule of Appellate Procedure 34(a)(2), and Second 17 Circuit Local Rule 34.1(b). 18
FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20

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