10-2709-ag Zhong v. Holder BIA A029 948 930 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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 Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 3 rd** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_________________________________________** 11 12 **DONGSHENG ZHONG, AKA DONG SHENG ZHONG,** 13 Petitioner**,** 14 15 **v. 10-2709-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Peter S. Gordon, Forest Hills, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Thomas B. Fatouros, Senior** 27 **Litigation Counsel; Pegah Vakili,** 28 **Trial Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Dongsheng Zhong, a native and citizen of the 5 People’s Republic of China, seeks review of the June 24, 6 2010, decision of the BIA denying his motion to reopen. In 7 re Dongsheng Zhong, No. A029 948 930 (B.I.A. June 24, 2010). 8 We review the BIA’s denial of a motion to reopen for abuse 9 of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 (2d 10 Cir. 2006) (per curiam). When the BIA evaluates country 11 conditions evidence submitted with a motion to reopen, we 12 review its findings for substantial evidence. See Jian Hui 13 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We 14 assume the parties’ familiarity with the underlying facts 15 and procedural history of the case. 16 The BIA’s denial of Zhong’s motion to reopen as 17 untimely was not an abuse of discretion. A motion to reopen 18 generally must be filed no later than 90 days after the date 19 on which the final administrative decision has been rendered 20 in the proceedings sought to be reopened. 8 U.S.C. 21 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 223 dispute that Zhong’s 2009 motion was untimely, as the final 1 administrative decision was issued in 2001. See id

. 2 However, the time and number limitations do not apply to a 3 motion to reopen if it is “based on changed circumstances 4 arising in the country of nationality or in the country to 5 which deportation has been ordered, if such evidence is 6 material and was not available and could not have discovered 7 or presented at the previous hearing.” 8 C.F.R. 8 § 1003.2(c)(3)(ii); see also8 U.S.C. § 1229a(c)(7)(C)(ii). 9 Zhong contends that his new Falun Gong activities in the 10 United States constitute changed circumstances. As the BIA 11 noted, Zhong’s Falun Gong activities in the United States 12 reflect a self-induced change in personal circumstances, and 13 therefore do not exempt his motion from the applicable bars. 14 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Wei 15 Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). 16 Zhong also argues that he demonstrated changed country 17 conditions by submitting evidence which shows that 18 conditions for Falun Gong practitioners in China worsened in 19 2008, and that the BIA overlooked this evidence. However, 20 the BIA specifically referenced this evidence in its 21 decision, and acknowledged that a change in conditions 224 occurred in 1999, when the Chinese government banned Falun 1 Gong, almost a decade before Zhong commenced his Falun Gong 2 practice. The BIA noted that the evidence showed 3 “continuing repression” of Falun Gong practitioners in China 4 and “substantial repression before and after the 2008 5 Olympics,” not that conditions changed in 2008. This 6 acknowledgment of the evidence was sufficient. Jian Hui 7 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (noting 8 that the BIA does not need to expressly parse or refute 9 every piece of evidence submitted by the petitioner); Xiao 10 Ji Chen v. US Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d 11 Cir. 2006). 12 Moreover, the BIA’s determination that the evidence 13 submitted by Zhong failed to demonstrate any change in 14 condition between 1999, when the Chinese government banned 15 Falun Gong, and 2009, when Zhong filed the motion to reopen, 16 is supported by substantial evidence. See Jian Hui Shao , 17 546 F.3d at 169. While the background materials show a 18 general deterioration of human rights around the 2008 19 Beijing Olympics, and a continued repression of Falun Gong 20 practitioners, there is nothing to show a change of 21 conditions for Falun Gong practitioners in China in a way 225 material to Zhong’s claim. As this evidence supports the 1 BIA’s decision that repression of Falun Gong practitioners 2 was ongoing since 1999, the record does not compel a 3 contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); see also 4 Castro v. Holder, 597 F.3d 93, 99-100 (2d Cir. 2010). 5 For the foregoing reasons, the petition for review is 6

DENIED. 7

FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk 9 10 11