Pursuant to Federal Rule of Appellate Procedure * 43(c)(2), Attorney General Eric H. Holder, Jr. is automatically substituted for former Acting Attorney General Peter D. Keisler as a respondent in this case.

091409- 23 07 -48 39 -ag Zheng v. Holder BIA A074 234 472 

### UNITE D STATES COURT OF AP PEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY S UMMAR Y 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 O R O T H E R P A P E RIN 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 A CCOMPANIED 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 E L E C T R O N I C DATABASE WHICH IS PUBLICLY ACCESSI BLE 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 BAI ZHENG, 15 Petitioner , 16 17 v. 07-4839-ag 18 NAC 19 UNITED STATES DEPARTMENT OF JUSTICE, 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, * 22 Respondents . 23

_________________________________________2 1 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New 2 York. 3 4 FOR RESPONDENTS: Gregory G. Katsas, Assistant 5 Attorney General; Michelle G. 6 Latour, Assistant Director; Sunah 7 Lee, Trial Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, D.C. 11 1 2 UPON DUE CONSIDERATION of this petition for review of a 1 3 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 4 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 5 is DENIED. 1 6 Petitioner Bai Zheng, a native and citizen of the 1 7 People’s Republic of China, seeks review of an October 16, 1 8 2007 order of the BIA denying his motion to reopen. In re 19 Bai Zheng , No. A074 234 472 (B.I.A. Oct. 16, 2007). We 2 0 assume the parties’ familiarity with the underlying facts 2 1 and procedural history in this case. 2 2 We review the agency’s denial of a motion to reopen for 2 3 abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d 2 4 Cir. 2006). When the agency considers relevant evidence of 2 5 country conditions in evaluating a motion to reopen, we 2 6 review the agency’s factual findings under the substantial 2 7 evidence standard. See Jian Hui Shao v. Mukasey , 546 F.3d3 1 138, 169 (2d Cir. 2008). 2 The agency did not err in denying Zheng’s untimely 3 motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 4 8 C.F.R. § 1003.2(c)(2). Zheng argues that the BIA erred in 5 concluding that he failed to produce evidence demonstrating 6 either material changed country conditions sufficient to 7 excuse the untimely filing of his motion to reopen or his 8 prima facie eligibility for relief. However, we have 9 previously reviewed the BIA’s consideration of evidence 1 0 similar to that which Zheng submitted and have found no 1 1 error in its conclusion that such evidence is insufficient 1 2 to establish either material changed country conditions or a 1 3 reasonable possibility of persecution. See Jian Hui Shao , 1 4 546 F.3d at 169-73 (noting that “[w]e do not ourselves 1 5 attempt to resolve conflicts in record evidence, a task 1 6 largely within the discretion of the agency”); see also Wei 17 Guang Wang v. BIA , 437 F.3d 270, 275 (2d Cir. 2006) (noting 1 8 that while the BIA must consider evidence such as “the oft1 9 cited Aird affidavit, which [it] is asked to consider time 2 0 and again[,] . . . it may do so in summary fashion without a 2 1 reviewing court presuming that it has abused its 2 2 discretion”).4 1 The BIA’s determination that Zheng was ineligible to 2 file a successive asylum application was not in error. See 3 Yuen Jin v. Mukasey , 538 F.3d 143, 156, 158-59 (2d Cir. 4 2008). Finally, we lack jurisdiction to consider Zheng’s 5 argument that the BIA abused its discretion by declining to 6 reopen his proceedings sua sponte . See Ali , 448 F.3d at 7 518.

For the foregoing reasons, the petition for review is 8 9 DENIED. As we have completed our review, any stay of 1 0 removal that the Court previously granted in this petition 1 1 is VACATED, and any pending motion for a stay of removal in 1 2 this petition is DISMISSED as moot. Any pending request for 1 3 oral argument in this petition is DENIED in accordance with 1 4 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 5 Circuit Local Rule 34(b). 1 6 FOR THE COURT: 1 7 Catherine O’Hagan Wolfe, Clerk 18 19 2 0 By:___________________________