11-3991-ag BIA

Zhang v. Holder A070 852 230

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

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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 24th day of April, two thousand twelve.

PRESENT:

JOHN M. WALKER, JR.,

DEBRA ANN LIVINGSTON,

GERARD E. LYNCH,

Circuit Judges.

_____________________________________

XUE JIN ZHANG, AKA XUE JIN ZHENG,

Petitioner, 

 v. 11-3991-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL, 

Respondent.

_______________________________________

FOR PETITIONER: Zhou Wang, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General; David V. Bernal, Assistant

Director; Yedidya Cohen, Trial

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 Xue Jin Zhang, a native and citizen of the

People’s Republic of China, seeks review of a September 15,

2011, decision of the BIA denying his motion to reopen his

deportation proceedings. In re Xue Jin Zhang, No. A070 852

230 (B.I.A. Sept. 15, 2011). We assume the parties’

familiarity with the underlying facts and procedural history

in this 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). An alien seeking to reopen proceedings is

required to file a motion to reopen no later than 90 days

after the date on which the final administrative decision

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

§ 1003.2(c)(2). There is no dispute that Zhang’s January

2011 motion to reopen was untimely because the BIA issued a

final order of removal in December 2002. See 8 U.S.C.

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

Zhang contends, however, that he established a material

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change in conditions in China excusing the untimeliness of

his motion to reopen on the basis of the enactment of the

March 2005 Regulations of Religious Affairs. See 8 U.S.C. 

§ 1229a(c)(7)(C)(ii). We conclude that the BIA’s denial of

Zhang’s motion to reopen as untimely was not an abuse of

discretion. 

As the BIA determined, Zhang was unable to demonstrate

a material change in conditions because he failed to present

any evidence concerning the treatment of Chinese Christians

at the time of his 2000 merits hearing. See In re S-Y-G-,

24 I. & N. Dec. 247, 253 (B.I.A. 2007) (“In determining

whether evidence accompanying a motion to reopen

demonstrates a material change in country conditions that

would justify reopening, [the BIA] compare[s] the evidence

of country conditions submitted with the motion to those

that existed at the time of the merits hearing below.”); see

also 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, the BIA’s

determination that China’s promulgation of the March 2005

Regulations of Religious Affairs did not constitute a

material change in circumstances is supported by substantial

evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

(2d Cir. 2008). In assessing the March 2005 Regulations of

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Religious Affairs, the BIA reasonably noted that Zhang’s

earliest country conditions evidence described a violent

crackdown on an underground church in 2001, which predated

the regulations’ enactment. See In re S-Y-G-, 24 I. & N.

Dec. at 253.

While Zhang takes issue with the BIA’s finding that the

country conditions evidence reflects a continuation, rather

than a material change, in China’s level of religious

repression, the task of resolving conflicts in the record

evidence lies “largely within the discretion of the agency.”

Jian Hui Shao, 546 F.3d at 171. Because the BIA’s 

inference that conditions in China have not materially

changed “is tethered to the evidentiary record, we will

accord deference to the finding.” See Siewe v. Gonzales,

480 F.3d 160, 168-69 (2d Cir. 2007) (noting that “support

for a contrary inference – even one more plausible or more

natural – does not suggest error”). Moreover, given the

BIA’s explicit consideration of the March 2005 Regulations

of Religious Affairs, Zhang’s argument that the BIA ignored

his comparison of religious regulations is not supported by

the record. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

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“has taken into account all of the evidence before [it],

unless the record compellingly suggests otherwise”).

Because the BIA did not abuse its discretion in denying

Zhang’s untimely motion, we decline to address Zhang’s prima

facie eligibility for asylum and withholding of removal, as

the BIA did not reach that issue. See INS v. Bagamasbad,

429 U.S. 24, 25 (1976).

For the foregoing reasons, the petition for review is

DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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