11-5399 Zeng v. Holder BIA A072 455 590 

### 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 27 th** **day of August, two thousand twelve.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **JOSÉ A. CABRANES,** 8 **ROBERT D. SACK,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **ZAO YANG ZENG, AKA TERUYA JIKKO,** 13 Petitioner**,** 14 15 **v. 11-5399** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, NY.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Ada E. Bosque,** 26 **Senior Litigation Counsel; Mona** 27 **Maria Yousif, Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Zao Yang Zeng, a native and citizen of 5 China, seeks review of a December 9, 2011, decision of the 6 BIA denying his motion to reopen his removal proceedings. 7 In re Zao Yang Zeng, No. A072 455 590 (B.I.A. Dec. 9, 2011). 8 We assume the parties’ familiarity with the underlying facts 9 and procedural history in this case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006) (per curiam). An alien seeking to reopen 13 proceedings is required to file a motion to reopen no later 14 than 90 days after the date on which the final 15 administrative decision was rendered. See8 U.S.C. 16 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 17 dispute that Zeng’s motion to reopen, filed in 2010, was 18 untimely because the BIA issued a final order of removal in 19 2002 . See8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 20 § 1003.2(c)(2). 21 Zeng contends, however, that he established an 22 exception to the time limitation by demonstrating changed 233 country conditions based on an increase in persecution of 1 Christian house church members following his merits hearing 2 in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(ii);see also 3 8 C.F.R. § 1003.2(c)(3)(ii). We conclude that the BIA’s 4 denial of Zeng’s motion to reopen as untimely was not an 5 abuse of discretion. 6 Because Zeng did not support his motion with evidence 7 of country conditions at the time of his merits hearing, the 8 BIA did not err by comparing his newly submitted evidence 9 with that submitted in connection with his prior asylum 10 application. In re S-Y-G- , 24 I. & N. Dec. 247, 253 (B.I.A. 11 2007) (“In determining whether evidence accompanying a 12 motion to reopen demonstrates a material change in country 13 conditions that would justify reopening, [the BIA] compares 14 the evidence of country conditions submitted with the motion 15 to those that existed at the time of the merits hearing 16 below.”). As the BIA noted, the evidence of recent 17 conditions indicated a very similar situation for Christians 18 in China to that demonstrated by the evidence of conditions 19 in or before 1999, the time of his merits hearing. 20 Specifically, as the BIA noted, the country reports 21 indicated that the restrictions placed on unauthorized 224 religious groups in 1994 were not appreciably different than 1 those imposed by the 2005 Regulations on Religious Affairs. 2 Though Zeng argues that the BIA erred in concluding that the 3 evidence merely demonstrated continuing negative treatment 4 of unregistered Christians, the task of resolving conflicts 5 in the record evidence lies “largely within the discretion 6 of the agency.”See Jian Hui Shao v. Mukasey, 546 F.3d 138, 7 160-61 (2d Cir. 2008). Where, as here, the agency’s 8 inference “is tethered to the evidentiary record, we will 9 accord deference to the finding.” See Siewe v. Gonzales , 10 480 F.3d 160, 168-69 (2d Cir. 2007). Moreover, while the 11 evidence indicated that some church leaders and pastors had 12 been subjected to lengthy detentions and physical harm, 13 because Zeng alleged only that he would attend services in 14 an underground church, he did not show that the harm 15 suffered by church leaders was material as he would not be 16 similarly situated to the targeted individuals. See Jian 17 Hui Shao , 546 F.3d at 171. 18 Also, Zeng’s contention that the BIA erred in 19 discounting his evidence of conditions for Chinese 20 Christians outside of his home province of Fujian is 21 misplaced, as Zeng bore the burden of supporting his motion 225 with “material” evidence. See 8 C.F.R. § 1003.2(c)(1);see 1 also 8 U.S.C. § 1229a(c)(7)(B);Jian Hui Shao , 546 F.3d at 2 149 (stating that where enforcement of a policy varies, it 3 is the applicant’s burden to show a well-founded fear of 4 persecution in his locality in China); Xiao Ji Chen v. U.S. 5 Dep’t of Justice , 471 F.3d 315, 342 (2d Cir. 2006) (noting 6 that the weight accorded to the applicant’s evidence lies 7 largely within the discretion of the agency). 8 As the BIA did not err in concluding that Zeng’s 9 conversion to Christianity in 2010 constituted a change in 10 personal circumstances, rather than a change in 11 circumstances in China that would except his motion from the 12 time limitation, see Yuen Jin v. Mukasey, 538 F.3d 143, 155 13 (2d Cir. 2008); Li Yong Zheng v. U.S. Dep’t of Justice , 416 14 F.3d 129, 130-31 (2d Cir. 2005), and as substantial evidence 15 supports the BIA’s conclusion that Zeng failed to 16 demonstrate a change in the treatment of Christians in 17 China, the BIA did not abuse its discretion by denying the 18 motion as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 19 8 C.F.R. § 1003.2(c)(3)(ii). Because the BIA did not abuse 20 its discretion in denying Zeng’s motion as untimely, we do 21 not address his prima facieeligibility for asylum, 22 withholding of removal, and relief under the Convention 236 Against Torture. See INS v. Bagamasbad, 429 U.S. 24, 25 1 (1976). 2 For the foregoing reasons, the petition for review is 3 DENIED. As we have completed our review, any stay of 4 removal that the Court previously granted in this petition 5 is VACATED, and any pending motion for a stay of removal in 6 this petition is DISMISSED as moot. Any pending request for 7 oral argument in this petition is DENIED in accordance with 8 Federal Rule of Appellate Procedure 34(a)(2), and Second 9 Circuit Local Rule 34.1(b). 10

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk 13 14 15