10-2709-ag

Zhong v. Holder

BIA

A029 948 930

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

New York, on the 3rd 4 day of April, two thousand twelve.

5

6 PRESENT:

7 ROSEMARY S. POOLER,

8 DEBRA ANN LIVINGSTON,

9 DENNY CHIN,

10 Circuit Judges.

11 _________________________________________

12

13 DONGSHENG ZHONG, AKA DONG SHENG ZHONG,

14 Petitioner, 

15

16 v. 10-2709-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: Peter S. Gordon, Forest Hills, New

24 York. 

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Thomas B. Fatouros, Senior

28 Litigation Counsel; Pegah Vakili,

29 Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Dongsheng Zhong, a native and citizen of the

6 People’s Republic of China, seeks review of the June 24,

7 2010, decision of the BIA denying his motion to reopen. In

8 re Dongsheng Zhong, No. A029 948 930 (B.I.A. June 24, 2010). 

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

10 of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d

11 Cir. 2006) (per curiam). When the BIA evaluates country

12 conditions evidence submitted with a motion to reopen, we

13 review its findings for substantial evidence. See Jian Hui

14 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). We

15 assume the parties’ familiarity with the underlying facts

16 and procedural history of the case.

17 The BIA’s denial of Zhong’s motion to reopen as

18 untimely was not an abuse of discretion. A motion to reopen

19 generally must be filed no later than 90 days after the date

20 on which the final administrative decision has been rendered

21 in the proceedings sought to be reopened. 8 U.S.C.

22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
3

1 dispute that Zhong’s 2009 motion was untimely, as the final

2 administrative decision was issued in 2001. See id. 

3 However, the time and number limitations do not apply to a

4 motion to reopen if it is “based on changed circumstances

5 arising in the country of nationality or in the country to

6 which deportation has been ordered, if such evidence is

7 material and was not available and could not have discovered

8 or presented at the previous hearing.” 8 C.F.R.

9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 

10 Zhong contends that his new Falun Gong activities in the

11 United States constitute changed circumstances. As the BIA

12 noted, Zhong’s Falun Gong activities in the United States

13 reflect a self-induced change in personal circumstances, and

14 therefore do not exempt his motion from the applicable bars. 

15 Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Wei

16 Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006). 

17 Zhong also argues that he demonstrated changed country

18 conditions by submitting evidence which shows that

19 conditions for Falun Gong practitioners in China worsened in

20 2008, and that the BIA overlooked this evidence. However,

21 the BIA specifically referenced this evidence in its

22 decision, and acknowledged that a change in conditions
4

1 occurred in 1999, when the Chinese government banned Falun

2 Gong, almost a decade before Zhong commenced his Falun Gong

3 practice. The BIA noted that the evidence showed

4 “continuing repression” of Falun Gong practitioners in China

5 and “substantial repression before and after the 2008

6 Olympics,” not that conditions changed in 2008. This

7 acknowledgment of the evidence was sufficient. Jian Hui

8 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (noting

9 that the BIA does not need to expressly parse or refute

10 every piece of evidence submitted by the petitioner); Xiao

11 Ji Chen v. US Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d

12 Cir. 2006). 

13 Moreover, the BIA’s determination that the evidence

14 submitted by Zhong failed to demonstrate any change in

15 condition between 1999, when the Chinese government banned

16 Falun Gong, and 2009, when Zhong filed the motion to reopen,

17 is supported by substantial evidence. See Jian Hui Shao,

18 546 F.3d at 169. While the background materials show a

19 general deterioration of human rights around the 2008

20 Beijing Olympics, and a continued repression of Falun Gong

21 practitioners, there is nothing to show a change of

22 conditions for Falun Gong practitioners in China in a way
5

1 material to Zhong’s claim. As this evidence supports the

2 BIA’s decision that repression of Falun Gong practitioners

3 was ongoing since 1999, the record does not compel a

4 contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B); see also

5 Castro v. Holder, 597 F.3d 93, 99-100 (2d Cir. 2010). 

6 For the foregoing reasons, the petition for review is

7 DENIED. 

8 FOR THE COURT: 

9 Catherine O’Hagan Wolfe, Clerk

10

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