10-3625-ag

Cheng v. Holder

 BIA

A072 484 741

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 14th day of July, two thousand eleven.

PRESENT:

JON O. NEWMAN,

RICHARD C. WESLEY,

PETER W. HALL,

Circuit Judges.

_________________________________________

SHOU CHENG,

Petitioner, 

 v. 10-3625-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_________________________________________

FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

York. 

FOR RESPONDENT: Tony West, Assistant Attorney

General; Mary Jane Candaux,

Assistant Director; Rosanne M.

Perry, 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 Shou Cheng, a native and citizen of the

People’s Republic of China, seeks review of the August 9,

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

re Shou Cheng, No. A072 484 741 (B.I.A. Aug. 9, 2010). We

assume the parties’ familiarity with the underlying facts

and procedural history of the case.

The BIA’s denial of Cheng’s motion to reopen as

untimely was not an abuse of discretion. See Kaur v. BIA,

413 F.3d 232, 233 (2d Cir. 2005) (per curiam) (providing

that this Court reviews the denial of reopening for abuse of

discretion). A motion to reopen generally must be filed no

later than 90 days after the date on which the final

administrative decision has been rendered in the proceedings

sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 

8 C.F.R. § 1003.2(c)(2). There is no dispute that Cheng’s

2010 motion was untimely and number-barred, as the final

administrative decision was issued in 1995, and it was her

second motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i);

8 C.F.R. § 1003.2(c)(2). The time and number limitations do

not apply to a motion to reopen, however, 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). Cheng contends that her

participation, while in the United States, in the Party for

Freedom and Democracy in China (“PFD”) constitutes changed

circumstances. 

As the BIA noted, Cheng’s political activities in the

United States reflect a self-induced change in personal

circumstances and, therefore, do not exempt her motion from

the applicable bars. Wei Guang Wang v. BIA, 437 F.3d 270,

273-74 (2d Cir. 2006). Cheng argues that the Chinese

government is likely aware of her activities in the United

States, but she provides no evidence to support such a

claim. Nor is there evidence in the record to support her

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contention. Moreover, Cheng does not argue that conditions

have changed or worsened in China for democracy activists. 

In fact, she states that repression of pro-democracy parties

in China “has been constant and unrelenting since the

[PFD’s] inception in 1989.” Because Cheng did not begin

participating in PFD activities until 2009, well after she

was ordered removed, the BIA did not abuse its discretion in

finding that she failed to meet an exception to the filing

deadline and number bar for motions to re-open and in thus

denying her motion to reopen.

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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