10-3004-ag

Zhang v. Holder

BIA

A073 680 816

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 23rd day of November, two thousand eleven.

PRESENT:

 REENA RAGGI,

RICHARD C. WESLEY,

GERARD E. LYNCH,

 Circuit Judges. 

_______________________________________

XIAO LE ZHANG,

Petitioner, 

 v. 10-3004-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

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

FOR RESPONDENT: Tony West, Assistant Attorney

General; Leslie McKay, Assistant

Director; Sara J. Bergene, Trial

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Xiao Le Zhang, a native and citizen of the People’s

Republic of China, seeks review of a June 30, 2010, decision

of the BIA denying her motion to reopen. In re Xiao Le

Zhang, No. A073 680 816 (B.I.A. June 30, 2010). We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

We review the BIA’s denial of Zhang’s motion to reopen

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

517 (2d Cir. 2006). When, as here, the BIA considers

relevant evidence of country conditions in evaluating a

motion to reopen, we review the BIA’s factual findings under

the substantial evidence standard. See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008). 

An alien may file only one motion to reopen and must do

so within 90 days of the agency’s final administrative

decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

Although Zhang’s motion was indisputably untimely and

number-barred because it was filed more than seven years

after the agency’s final order of deportation and it was her

third motion to reopen, see 8 U.S.C. § 1229a(c)(7)(C)(i),
3

there is no time or numerical limitation for filing a motion

to reopen if it is “based on changed country conditions

arising in the country of nationality or the country to

which removal has been ordered, if such evidence is material

and was not available and would not have been discovered or

presented at the previous proceeding.” 8 U.S.C. 

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

The BIA did not abuse its discretion in finding that

Zhang’s newly commenced practice of Christianity constituted

a change in her personal circumstances, rather than a change

in country conditions sufficient to excuse the applicable

time and numerical limitations. See Li Yong Zheng v. U.S.

Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005)

(explaining that a change in “personal circumstances in the

United States” did not constitute a change in country

conditions excusing the filing deadline for motions to

reopen). Moreover, the BIA did not err in finding that the

evidence that Zhang submitted in support of her motion to

reopen failed to demonstrate a material change in country

conditions excusing the untimely and number-barred filing of

her motion; that evidence indicated that since Zhang’s 2000

deportation hearing, the Chinese government had continually

repressed unregistered Christian churches. Furthermore,
4

although the evidence indicates that the Chinese government

may have intensified its repression of unregistered

religious groups in certain regions in the period leading up

to the 2008 Olympics, that intensification was not material

to Zhang’s motion, which was filed more than one year after

the Olympics had concluded. See 8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also Jian Hui Shao, 546 F.3d at

169. Accordingly, the BIA did not abuse its discretion in

denying Zhang’s motion to reopen as untimely and numberbarred. See 8 U.S.C. § 1229a(c)(7); see also 8 C.F.R. §

1003.2(c)(3)(ii). 

For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk