09-5096-ag

Zhang v. Holder

BIA

A075 962 501

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

4 New York, on the 7 day of September, two thousand ten. th

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 DENNY CHIN,

10 Circuit Judges.

11 _______________________________________

12

13 XUE BING ZHANG,

14 Petitioner, 

15

16 v. 09-5096-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _________________________________________

22 

23 FOR PETITIONER: Lee Ratner, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Michelle Gorden Latour,

27 Assistant Director; Matt A. Crapo,

28 Trial Attorney, Office of Immigration

29 Litigation, United States Department

30 of Justice, Washington, D.C.

31
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED. 

5 Petitioner Xue Bing Zhang, a native and citizen of

6 China, seeks review of a November 18, 2009 order of the BIA

7 denying her motion to reconsider and reopen. In re Xue Bing

8 Zhang, No. A075 962 501 (B.I.A. Nov. 18, 2009). We assume

9 the parties’ familiarity with the underlying facts and

10 procedural history in this case and note that this was

11 Zhang’s fifth motion filed before the BIA.

12 We review the BIA’s denial of a motion to reopen or

13 reconsider for abuse of discretion. See Kaur v. BIA, 413

14 F.3d 232, 233 (2d Cir. 2005) (per curiam). Here, the BIA

15 reasonably denied Zhang’s motion to reconsider because she

16 failed to show any error in fact or law in the BIA’s prior

17 decision. See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S.

18 Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001). Contrary

19 to Zhang’s arguments, the BIA reasonably declined to credit

20 her unauthenticated evidence based on the IJ’s underlying

21 adverse credibility determination. See Qin Wen Zheng v.

22 Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007). Furthermore,
3

1 the BIA did not err in finding no error in fact or law in

2 its prior decision, where it relied on State Department

3 reports, noted that Zhang voluntarily sent her United States

4 citizen child back to China, and highlighted other

5 authenticity concerns with her evidence, to conclude that

6 Zhang failed to overcome the prior adverse credibility

7 determination with credible evidence. See Xiao Ji Chen v.

8 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006); Tu

9 Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006); Melgar de

10 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). 

11 With respect to her untimely and number-barred motion to

12 reopen, the BIA did not abuse its discretion in finding that

13 Zhang failed to establish either a change in country

14 conditions or her prima facie eligibility for relief. See

15 Kaur, 413 F.3d at 233. The BIA also reasonably noted that

16 Zhang failed to attach an updated asylum application to her

17 motion, which is a requirement of establishing prima facie

18 eligibility. See 8 C.F.R. § 1003.2(c)(1); see also INS v.

19 Abudu, 485 U.S. 94, 104-05 (1988) (failure to establish

20 prima facie eligibility for relief is a ground upon which a

21 motion to reopen may be denied). In addition, the BIA

22 considered the evidence she submitted, and, in light of the
4

1 prior adverse credibility determination as well as

2 evidentiary and authenticity concerns, reasonably concluded

3 that she failed to establish a material change in country

4 conditions in China based either on her Falun Gong practice

5 or the family planning policy. See Wei Guang Wang v. BIA,

6 437 F.3d 270 (2d Cir. 2006); Jian Hui Shao v. Mukasey, 546

7 F.3d 138, 161-62 (2d Cir. 2008).

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, any stay of

10 removal that the Court previously granted in this petition

11 is VACATED, and any pending motion for a stay of removal in

12 this petition is DISMISSED as moot. Any pending request for

13 oral argument in this petition is DENIED in accordance with

14 Federal Rule of Appellate Procedure 34(a)(2), and Second

15 Circuit Local Rule 34(b).

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk

18