11-4733

Zeng v. Holder

BIA

A095 710 344

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 21st 4 day of September, two thousand twelve.

5

6 PRESENT:

7 JON O. NEWMAN,

8 GERARD E. LYNCH,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _______________________________________

12

13 SHUI XIAN ZENG,

14 Petitioner, 

15

16 v. 11-4733

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, New York.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; James A. Hunolt,

27 Senior Litigation Counsel; Stephen

28 M. Elliott, Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Petitioner Shui Xian Zeng, a native and citizen of the

6 People’s Republic of China, seeks review of an October 18,

7 2011, decision of the BIA denying her motion to reopen. In

8 re Shui Xian Zeng, No. A095 710 344 (B.I.A. Oct. 18, 2011). 

9 We assume the parties’ familiarity with the underlying facts

10 and procedural history of this case.

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

12 abuse of discretion, mindful of the Supreme Court’s

13 admonition that such motions are “disfavored.” Ali v.

14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam)

15 (quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). Aliens

16 seeking to reopen proceedings may file one motion to reopen

17 no later than 90 days after the date on which the final

18 administrative decision was rendered. 8 U.S.C.

19 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is

20 undisputed that Zeng’s July 2011 motion to reopen was

21 untimely, because the BIA issued its final order of removal

22 in 2008. However, the time and number limitations for

23 filing a motion to reopen do not apply if the motion is
3

1 “based on changed country conditions arising in the country

2 of nationality or the country to which removal has been

3 ordered, if such evidence is material and was not available

4 and would not have been discovered or presented at the

5 previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

6 also 8 C.F.R. § 1003.2(c)(3)(ii). 

7 In this case, the agency did not abuse its discretion

8 in denying Zeng’s motion to reopen as untimely. The

9 background materials do not demonstrate a change in country

10 conditions material to Zeng’s claim. See Jian Hui Shao v.

11 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). Although Zeng

12 provided reports and articles describing the harassment of

13 Christians in China, nothing in those materials compels the

14 conclusion that the treatment of Christians in China has

15 worsened since Zeng’s November 2006 hearing. See Matter of

16 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (holding that in

17 evaluating evidence of changed country conditions, the BIA

18 “compare[s] the evidence of country conditions submitted

19 with the motion to those that existed at the time of the

20 merits hearing below”); See Manzur v. U.S. Dep't of Homeland

21 Sec., 494 F.3d 281, 289 (2d Cir. 2007) (stating that this

22 Court treats the agency’s factual findings as “‘conclusive
4

1 unless any reasonable adjudicator would be compelled to

2 conclude to the contrary’”) (quoting 8 U.S.C.

3 § 1252(b)(4)(B)). 

4 Zeng argues that the BIA erred in failing to consider

5 the letter from her cousin, describing harassment and

6 mistreatment she experienced and witnessed in 2010. This

7 claim fails, however, because nothing in the record suggests

8 that the BIA did not consider all of Zeng’s evidence. See

9 Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 338

10 n.17 (2d Cir. 2006) (noting that this Court will “presume”

11 that the agency “has taken into account all of the evidence

12 before [it], unless the record compellingly suggests

13 otherwise”); Jian Hui Shao, 546 F.3d at 169 (noting that

14 the agency has no obligation to “expressly parse or refute

15 on the record each ... piece of evidence”) (internal

16 quotation marks omitted). 

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, the pending motion

19 for a stay of removal in this petition is DISMISSED as moot.

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

23