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

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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

New York, on the 27th 4 day of August, two thousand twelve.

5

6 PRESENT:

7 JON O. NEWMAN,

8 JOSÉ A. CABRANES,

9 ROBERT D. SACK,

10 Circuit Judges. 

11 _____________________________________

12

13 ZAO YANG ZENG, AKA TERUYA JIKKO,

14 Petitioner, 

15

16 v. 11-5399

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, NY. 

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Ada E. Bosque,

27 Senior Litigation Counsel; Mona

28 Maria Yousif, Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
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 Zao Yang Zeng, a native and citizen of

6 China, seeks review of a December 9, 2011, decision of the

7 BIA denying his motion to reopen his removal proceedings. 

8 In re Zao Yang Zeng, No. A072 455 590 (B.I.A. Dec. 9, 2011). 

9 We assume the parties’ familiarity with the underlying facts

10 and procedural history in this case.

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

12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006) (per curiam). An alien seeking to reopen

14 proceedings is required to file a motion to reopen no later

15 than 90 days after the date on which the final

16 administrative decision was rendered. See 8 U.S.C. 

17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no

18 dispute that Zeng’s motion to reopen, filed in 2010, was

19 untimely because the BIA issued a final order of removal in

20 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

21 § 1003.2(c)(2). 

22 Zeng contends, however, that he established an

23 exception to the time limitation by demonstrating changed
3

1 country conditions based on an increase in persecution of

2 Christian house church members following his merits hearing

3 in 1999. See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 

4 8 C.F.R. § 1003.2(c)(3)(ii). We conclude that the BIA’s

5 denial of Zeng’s motion to reopen as untimely was not an

6 abuse of discretion. 

7 Because Zeng did not support his motion with evidence

8 of country conditions at the time of his merits hearing, the

9 BIA did not err by comparing his newly submitted evidence

10 with that submitted in connection with his prior asylum

11 application. In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.

12 2007) (“In determining whether evidence accompanying a

13 motion to reopen demonstrates a material change in country

14 conditions that would justify reopening, [the BIA] compares

15 the evidence of country conditions submitted with the motion

16 to those that existed at the time of the merits hearing

17 below.”). As the BIA noted, the evidence of recent

18 conditions indicated a very similar situation for Christians

19 in China to that demonstrated by the evidence of conditions

20 in or before 1999, the time of his merits hearing. 

21 Specifically, as the BIA noted, the country reports

22 indicated that the restrictions placed on unauthorized
4

1 religious groups in 1994 were not appreciably different than

2 those imposed by the 2005 Regulations on Religious Affairs. 

3 Though Zeng argues that the BIA erred in concluding that the

4 evidence merely demonstrated continuing negative treatment

5 of unregistered Christians, the task of resolving conflicts

6 in the record evidence lies “largely within the discretion

7 of the agency.” See Jian Hui Shao v. Mukasey, 546 F.3d 138,

8 160-61 (2d Cir. 2008). Where, as here, the agency’s

9 inference “is tethered to the evidentiary record, we will

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

11 480 F.3d 160, 168-69 (2d Cir. 2007). Moreover, while the

12 evidence indicated that some church leaders and pastors had

13 been subjected to lengthy detentions and physical harm,

14 because Zeng alleged only that he would attend services in

15 an underground church, he did not show that the harm

16 suffered by church leaders was material as he would not be

17 similarly situated to the targeted individuals. See Jian

18 Hui Shao, 546 F.3d at 171. 

19 Also, Zeng’s contention that the BIA erred in

20 discounting his evidence of conditions for Chinese

21 Christians outside of his home province of Fujian is

22 misplaced, as Zeng bore the burden of supporting his motion
5

1 with “material” evidence. See 8 C.F.R. § 1003.2(c)(1); see

2 also 8 U.S.C. § 1229a(c)(7)(B); Jian Hui Shao, 546 F.3d at

3 149 (stating that where enforcement of a policy varies, it

4 is the applicant’s burden to show a well-founded fear of

5 persecution in his locality in China); Xiao Ji Chen v. U.S.

6 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting

7 that the weight accorded to the applicant’s evidence lies

8 largely within the discretion of the agency).

9 As the BIA did not err in concluding that Zeng’s

10 conversion to Christianity in 2010 constituted a change in

11 personal circumstances, rather than a change in

12 circumstances in China that would except his motion from the

13 time limitation, see Yuen Jin v. Mukasey, 538 F.3d 143, 155

14 (2d Cir. 2008); Li Yong Zheng v. U.S. Dep’t of Justice, 416

15 F.3d 129, 130-31 (2d Cir. 2005), and as substantial evidence

16 supports the BIA’s conclusion that Zeng failed to

17 demonstrate a change in the treatment of Christians in

18 China, the BIA did not abuse its discretion by denying the

19 motion as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(ii); 

20 8 C.F.R. § 1003.2(c)(3)(ii). Because the BIA did not abuse

21 its discretion in denying Zeng’s motion as untimely, we do

22 not address his prima facie eligibility for asylum,

23 withholding of removal, and relief under the Convention
6

1 Against Torture. See INS v. Bagamasbad, 429 U.S. 24, 25

2 (1976).

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

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

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

8 oral argument in this petition is DENIED in accordance with

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

10 Circuit Local Rule 34.1(b).

11

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14

15