10-2501-ag

Zhang v. Holder

BIA

A070 528 959

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

for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 26th day of August, two thousand eleven.

PRESENT:

 REENA RAGGI,

GERARD E. LYNCH,

RAYMOND J. LOHIER, JR.,

 Circuit Judges. 

_______________________________________

JUN-LAN ZHANG,

Petitioner, 

 v. 10-2501-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Peter L. Quan, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Richard M. Evans, Assistant

Director; Benjamin J. Zeitlin, Trial

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED in part and DISMISSED in part.

Jun-Lan Zhang, a citizen of the People’s Republic of

China, seeks review of a June 1, 2010 order of the BIA denying

his motion to reopen. See In re Jun-Lan Zhang, No. A070 528

959 (B.I.A. June 1, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history of this case.

We review the BIA’s denial of reopening deferentially for

abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d

138, 169 (2d Cir. 2008). An alien may file one motion to

reopen within 90 days of the final administrative decision. 

See 8 U.S.C. § 1229a(c)(7)(c)(i); 8 C.F.R. § 1003.2(c)(2). 

Although Zhang’s third motion was indisputably untimely and

number-barred, such limitations do not apply if an applicant

demonstrates materially “changed country conditions arising in

the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii);

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

Zhang submits that a purported notice from government

officials in Houyu County asking him to “[p]lease come back to

China to accept the punishment as soon as possible” for his

“support[] for the ‘Jun[e] 4th Activity,’” J.A. 31,

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demonstrated a material change in country conditions, see

Pet’r’s Br. at 7-8. We are not persuaded. Zhang did not

describe how or when he received this notice, or explain why

the Chinese government would be interested in him nearly

twenty years after his alleged participation in student

democracy activities. Moreover, while the notice might be

evidence of continuing persecution of political dissidents by

the Chinese government, Zhang did not explain how it

demonstrated a change in the treatment of dissidents. See

Jian Hui Shao v. Mukasey, 546 F.3d at 169. Indeed, Zhang did

not even mention the notice in his affidavit, which asserted

that Zhang feared persecution “[b]ecause [he] illegally

departed from China.” J.A. 29. In these circumstances, the

BIA reasonably concluded that the notice was insufficient to

establish materially changed country conditions. See Xiao Ji

Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

2006) (observing that weight afforded to applicant’s evidence

in immigration proceedings lies largely within BIA’s

discretion). Accordingly, the agency did not abuse its

discretion in denying reopening.

Zhang contends that he was deprived of due process when

the immigration judge (“IJ”) denied his initial asylum

application in January 2001 without sufficiently considering

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his testimony. The IJ’s decision, however, is not properly

before this Court. See, e.g., Ke Zhen Zhao v. U.S. Dep’t of

Justice, 265 F.3d 83, 90 (2d Cir. 2001); see also Stone v.

INS, 514 U.S. 386, 405-06 (1995). Further, Zhang failed to

exhaust this due process challenge before the BIA. See Foster

v. INS, 376 F.3d 75, 77-78 (2d Cir. 2004); Theodoropoulos v.

INS, 358 F.3d 162, 172 (2d Cir. 2004) (describing exhaustion

requirements in habeas proceeding). Accordingly, we lack

jurisdiction to consider this claim, and we dismiss the

petition to that extent. 

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. 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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