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

07-4839-ag

Zheng v. Holder

BIA

A074 234 472

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 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

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 Bai Zheng, a native and citizen of the

17 People’s Republic of China, seeks review of an October 16,

18 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

20 assume the parties’ familiarity with the underlying facts

21 and procedural history in this case.

22 We review the agency’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 agency considers relevant evidence of

25 country conditions in evaluating a motion to reopen, we

26 review the agency’s factual findings under the substantial

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

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

10 similar to that which Zheng submitted and have found no

11 error in its conclusion that such evidence is insufficient

12 to establish either material changed country conditions or a

13 reasonable possibility of persecution. See Jian Hui Shao,

14 546 F.3d at 169-73 (noting that “[w]e do not ourselves

15 attempt to resolve conflicts in record evidence, a task

16 largely within the discretion of the agency”); see also Wei

17 Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting

18 that while the BIA must consider evidence such as “the oft19 cited Aird affidavit, which [it] is asked to consider time

20 and again[,] . . . it may do so in summary fashion without a

21 reviewing court presuming that it has abused its

22 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. 

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

19

20 By:___________________________