Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr. is

automatically substituted for former Attorney General

Michael B. Mukasey as respondent in this case.

07-5454-ag

Zeng v. Holder

BIA

A029 793 777

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 19 day of November, two thousand nine. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JON. O. NEWMAN, 

10 PIERRE N. LEVAL,

11 Circuit Judges. 

12 _________________________________________

13

14 SHI MING ZENG,

15 Petitioner, 

16

17 v. 07-5454-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES *

20 ATTORNEY GENERAL,

21 Respondent.

22 _________________________________________

23
2

1 FOR PETITIONER: Yuming Wang, Wynnewood,

2 Pennsylvania.

3

4 FOR RESPONDENT: Gregory G. Katsas, Assistant

5 Attorney General; M. Jocelyn Lopez

6 Wright, Assistant Director; Yamileth

7 G. Handuber, Trial Attorney; Office

8 of Immigration Litigation, Civil

9 Division, United States Department

10 of Justice, Washington, D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

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

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

15 is DENIED. 

16 Petitioner Shi Ming Zeng, a native and citizen of the

17 People’s Republic of China, seeks review of a November 8,

18 2007 order of the BIA denying his motion to reopen. In re

19 Shi Ming Zeng, No. A029 793 777 (B.I.A. Nov. 8, 2007). We

20 assume the parties’ familiarity with the underlying facts

21 and procedural history in this case.

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

23 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

24 Cir. 2006). When the BIA considers relevant evidence of

25 country conditions in evaluating a motion to reopen, we

26 review the BIA’s factual findings under the substantial

27 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d

28 138, 169 (2d Cir. 2008). 

29 The BIA did not err in denying Zeng’s untimely motion
3

1 to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.

2 § 1003.2(c)(2). Zeng argues that the BIA erred in

3 concluding that he failed to produce evidence demonstrating

4 either material changed country conditions sufficient to

5 excuse the untimely filing of his motion to reopen or his

6 prima facie eligibility for relief from deportation. 

7 However, these arguments fail because we have previously

8 reviewed the BIA’s consideration of evidence similar to that

9 which Zeng submitted and have found no error in its

10 conclusion that such evidence is insufficient to establish

11 either material changed country conditions or a reasonable

12 possibility of persecution. See Jian Hui Shao, 546 F.3d at

13 169-72 (noting that “[w]e do not ourselves attempt to

14 resolve conflicts in record evidence, a task largely within

15 the discretion of the agency”); see also Wei Guang Wang v.

16 BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the

17 BIA must consider evidence such as “the oft-cited Aird

18 affidavit, which [it] is asked to consider time and again[,]

19 . . . it may do so in summary fashion without a reviewing

20 court presuming that it has abused its discretion”). 

21 Moreover, contrary to Zeng’s argument, the BIA reasonably

22 found that his particularized evidence was not material

23 because it did not reference the forced sterilizations of
4

1 similarly situated individuals. See Jian Hui Shao, 546 F.3d

2 at 160-61. Even if, as Petitioner contends, the BIA was

3 mistaken in thinking that he had failed to submit the

4 original of the document from the Tinjiang Town Government,

5 any such error is harmless because the BIA reasonably

6 stated, “Even if we consider arguendo this document, he has

7 not demonstrated that the policy expressed within

8 constituted evidence of changed country conditions in the

9 absence of any evidence that the prior version of the law

10 was different, or differently enforced, in some relevant and

11 material way.” (BIA opinion at 3)

12 We lack jurisdiction to consider any argument that the

13 BIA abused its discretion in declining to reopen Zeng’s

14 proceedings sua sponte. See Ali, 448 F.3d at 518.

15 For the foregoing reasons, the petition for review is

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

17 removal that the Court previously granted in this petition

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

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

20 oral argument in this petition is DENIED in accordance with

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

22 Circuit Local Rule 34(b).

23 FOR THE COURT: 

24 Catherine O’Hagan Wolfe, Clerk

25

26 By:___________________________