10-3371-ag

Zheng v. Holder

BIA

A073 489 954

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 27th day of September, two thousand eleven.

PRESENT:

JON O. NEWMAN,

ROBERT A. KATZMANN,

GERARD E. LYNCH,

 Circuit Judges. 

_______________________________________

GANG-QING ZHENG, AKA CHAO HSIUNG

CHAN,

Petitioner, 

 v. 10-3371-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent. ______________________________________

FOR PETITIONER: Dehai Zhang, Flushing, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

Daniel E. Goldman, Senior Litigation

Counsel; Jem C. Sponzo, Trial Attorney,

Office of Immigration Litigation, Civil

Division, 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.

Gang-Qing Zheng, a native and citizen of China, seeks review

of an August 4, 2010, order of the BIA denying his motion to reopen

his exclusion proceedings. In re Gang-Qing Zheng, No. A073 489 954

(B.I.A. Aug. 4, 2010). We assume the parties’ familiarity with the

underlying facts and procedural history of the case. We review

the BIA’s denial of a motion to reopen for abuse of discretion. 

See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Here, the

BIA did not abuse its discretion by denying Zheng’s motion to

reopen as untimely, as he filed it more than six years after his

final order of removal. See 8 U.S.C. § 1229a(c)(7). 

Although the time limits on motions to reopen may be excused

when the movant demonstrates changed country conditions, 8 U.S.C.

§ 1229a(c)(7)(C)(ii), the BIA reasonably concluded that only

Zheng’s personal circumstances had changed, as his claim was based

on the fact that he joined the Chinese Democracy Party in 2007. 

See Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting

that “apparent gaming of the system in an effort to avoid [removal]

is not tolerated by the existing regulatory scheme”); see also Yuen

Jin v. Mukasey, 538 F.3d 143, 151-56 (2d Cir. 2008) (noting that

“it would be ‘ironic’ to allow aliens to reopen their cases . . .

simply because they were able to change their own personal

circumstances”). 

The BIA did not abuse its discretion in giving little weight

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to Zheng’s affidavit and supporting letters stating that

authorities in China threatened that he would be arrested and

detained upon return to China, see Xiao Ji Chen v. U.S. Dep’t of

Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding that the weight

afforded to the applicant’s evidence lies largely within the

discretion of the agency), particularly given the agency’s

underlying determination that Zheng was not credible, see Qin Wen

Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007) (finding

that the BIA did not err in rejecting the petitioner’s document

submitted in support of a motion to reopen based on legitimate

concerns about the petitioner’s credibility stemming from the IJ’s

underlying adverse credibility determination).

Zheng also argues that the BIA impermissibly made findings of

fact, but there was no fact-finding in noting that telephone bills

are not evidence of the content of telephone conversations. 

Although Zheng argues that the BIA failed to consider some

affidavits in the record, the record does not compellingly suggest

that the BIA failed to take those affidavits into account, and in

any event those affidavits did not provide any support for Zheng’s

allegation that Chinese authorities were aware of Zheng’s political

activities or threatened to harm him because of those activities. 

See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n,17

(2d Cir. 2006) (“[W]e presume that [the BIA] has taken into account

all of the evidence . . . unless the record compellingly suggests

otherwise.”). Moreover, Zheng did not present any other evidence

documenting changed circumstances.

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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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