09-2134-ag

Zheng v. Holder

BIA

A070 894 663

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.

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 26 day of March, two thousand ten. th

5

6 PRESENT:

7 ROBERT D. SACK,

8 REENA RAGGI,

9 RICHARD C. WESLEY,

10 Circuit Judges.

11 _______________________________________

12

13 DONG JIAN ZHENG, 

14 Petitioner,

15

16 v. 09-2134-ag 

17 NAC

18

19 ERIC H. HOLDER, Jr., U.S. ATTORNEY 

20 GENERAL, BOARD OF IMMIGRATION APPEALS,

21 Respondents.

22 _______________________________________

23

24 FOR PETITIONER: Thomas D. Barra, Forest Hills, New

25 York.

26

27 FOR RESPONDENTS: Tony West, Assistant Attorney

28 General, Blair T. O’Connor,

29 Assistant Director, Juria L. Jones,

30 Trial Attorney, Office of

31 Immigration Litigation, Civil

32 Division, United States Department

33 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Petitioner Dong Jian Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of an April 22,

7 2009, order of the BIA denying his motion to reopen his

8 removal proceedings. In re Dong Jian Zheng, No. A070 894

9 663 (B.I.A. Apr. 22, 2009). We assume the parties’

10 familiarity with the underlying facts and procedural history

11 of the case.

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

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

14 (2d Cir. 2006). An alien who has been ordered removed may

15 file one motion to reopen, but must do so within 90 days of

16 the final administrative decision. 8 U.S.C. § 1229a(c)(7).

17 Here, the BIA properly denied Zheng’s motion to reopen as

18 untimely and number-barred because he filed it almost seven

19 years after his July 2002 final order of removal and it was

20 the second such motion he had filed. See id.; 8 C.F.R.

21 § 1003.2(c)(2). 

22 The 90-day filing deadline and numerical limitation may

23 be excused if the alien can establish “changed country
3

1 conditions arising in the country of nationality . . . .” 

2 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 

3 The BIA reasonably concluded, however, that Zheng had shown

4 only that his personal circumstances had changed. See Wei

5 Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (noting

6 that “apparent gaming of the system in an effort to avoid

7 [removal] is not tolerated by the existing regulatory

8 scheme”); see also Yuen Jin v. Mukasey, 538 F.3d 143, 151-56

9 (2d Cir. 2008). Because Zheng was required to show changed

10 country conditions in order to succeed on his untimely and

11 number-barred motion, we need not reach his argument that he

12 is prima facie eligible for relief. See 8 U.S.C.

13 § 1229a(c)(7)(C)(ii). 

14 For the foregoing reasons, the petition for review is

15 DENIED. Having completed our review, we DISMISS the

16 petitioner's pending motion for a stay of removal as moot. 

17

18

19 FOR THE COURT:

20 Catherine O’Hagan Wolfe, Clerk

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