09-5249-ag

Zhu v.Holder BIA A077 340 853 

### UNITED STATES COURT OFAPPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFEC T. C ITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 20 07, 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 2 day of July, two thousand ten. nd 5 6 PRESENT: 7 JON O. NEWMAN, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11

______________________________________ 12 13 BING ZHU, ALSO KNOWN AS BIN CHOU, 14 ALSO KNOWN AS YUAN CHEN, ALSO KNOWN 15 AS BING HU, 16 Petitioner , 17 09-5249-ag 18 v. NAC 19 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent . 23

______________________________________ 24 25 FOR PETITIONER: Gary J. Yerman, New York, New York. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General, Civil Division; M. Jocelyn 29 Lopez Wright, Senior Litigation 30 Counsel, Office of Immigration 31 Litigation; Leslie McKay, Assistant 32 Director, Office of Immigration 33 Litigation, United States Department 34 of Justice, Washington, D.C.2 1 UPOND UE 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 is 4 DENIED. 5 Petitioner Bing Zhu, a native and citizen of the People’s 6 Republic of China, seeks review of a November 27, 2009 order 7 of the BIA denying his motion to reopen his removal 8 proceedings. In re Bing Zhu , No. A 077 340 853 (B.I.A. Nov. 9 27, 2009). We assu me the parties’ familiarity with the 1 0 underlying facts and procedural history of the case. 1 1 We review the BIA’s denial of a motion to reopen for 1 2 abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d 1 3 Cir. 2006). When the BI A co nsiders relevant evidence of 1 4 country conditions in evaluating a motion to reopen, we review 1 5 the BIA’ s factual findings under the substantial evidence 1 6 standard. See Jian Hui Shao v. Mukasey , 546 F.3d 138, 169 (2d 1 7 Cir. 2008). 1 8 An al ie n may only file one motion to reopen and must do 1 9 so within 90 days of the final administrative decision. 2 0 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is no 2 1 dispute that Zhu’s motion to reopen — filed over five years 2 2 after the BIA issued a final order in his case – was untimely. 2 3 However, there is no time limitation if the alien establishes3 1 mater ia lly “changed circumstances arising in the country of 2 nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). 3 The BIA found that the changed circumstance Zhu alleged 4 – his recent conversion to Christianity – reflected a change 5 in personal circumstances, not a change in country conditions. 6 It is well-settled that such a c ha nge in personal 7 circ umstances does not suffice to establish an exception to 8 the timeliness requirement under 8 C.F.R. § 1003.2(c)(3)(ii). 9 See Li Yong Zheng v. U. S. Dep't of Justice , 416 F.3d 129, 1 0 130-31 (2d Cir. 2005). 1 1 Zhu argu es , however, that the BIA’s finding that he did 1 2 not establish changed country conditions was flawed because it 1 3 erred by: (1) faulting him for submitting evidence only of 1 4 recent conditions in China, as opp os ed to evidence 1 5 demonstrating changed country conditions; and (2) failing to 1 6 take a dministrative notice of country reports that could 1 7 evidence such a ch an ge i n country conditions. Contrary to 1 8 these arguments, it was Zhu’s burden to present evidence 1 9 demonstrating changed country conditions. See8 U.S.C. 2 0 § 1229 a( c) (7 )( B) ; 8 C. F. R. § 10 03 .2 (c )( 1) . B ec au se th e B IA 2 1 reasonably found that Zhu did not submit evidence establishing 2 2 a changein circumstances from the time of the IJ’s 2002 2 3 dec is io n in this case, but only evidence regarding recent4 1 conditions in China, the BIA did not abuse its discretion in 2 denying Zhu’s untimely motion to reopen. See Zheng Zhong Chen 3 v. Gonzales , 437 F.3d 267, 269-70 (2d Cir. 2006) . To the 4 extent Zhu argues that the BIA erred by failing to take 5 administrative notice of evidenc e not in the record, it was 6 under no obligation to do so. See Hoxhallari v. Gonzales , 468 7 F.3d 179, 186 n.5 (2d Cir. 2006) (noting that BIA “ may 8 exercise independent discretion to take judicial notice of 9 . . . changes in a country’s politics” (emphasis added)). 1 0 For the foregoing reasons, t he pe ti ti on for review is 1 1 DENIED. As we have completed our review, any stay of removal 1 2 that the Court previously granted in this petition is VACATED, 1 3 and any pending motion for a stay of removal in this petition 1 4 is DISMISSED as moot. Any pending request for oral argument in 1 5 this petition is DENIED in accorda nc e wi th Federal Rule of 1 6 Appellate Procedure 34(a)(2), and Second Circuit L ocal Rule 1 7 34.1(b). 18 19 2 0 FOR THE COURT: 2 1 Catherine O’Hagan Wolfe, Clerk 22