09-5249-ag

Zhu v. Holder

BIA

A077 340 853

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 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 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 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 assume the parties’ familiarity with the

10 underlying facts and procedural history of the case.

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

12 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

13 Cir. 2006). When the BIA considers relevant evidence of

14 country conditions in evaluating a motion to reopen, we review

15 the BIA’s factual findings under the substantial evidence

16 standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

17 Cir. 2008). 

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

19 so within 90 days of the final administrative decision. 

20 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is no

21 dispute that Zhu’s motion to reopen — filed over five years

22 after the BIA issued a final order in his case – was untimely.

23 However, there is no time limitation if the alien establishes
3

1 materially “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 change in personal

7 circumstances 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,

10 130-31 (2d Cir. 2005). 

11 Zhu argues, however, that the BIA’s finding that he did

12 not establish changed country conditions was flawed because it

13 erred by: (1) faulting him for submitting evidence only of

14 recent conditions in China, as opposed to evidence

15 demonstrating changed country conditions; and (2) failing to

16 take administrative notice of country reports that could

17 evidence such a change in country conditions. Contrary to

18 these arguments, it was Zhu’s burden to present evidence

19 demonstrating changed country conditions. See 8 U.S.C. 

20 § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1). Because the BIA

21 reasonably found that Zhu did not submit evidence establishing

22 a change in circumstances from the time of the IJ’s 2002

23 decision in this case, but only evidence regarding recent
4

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 evidence 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)). 

10 For the foregoing reasons, the petition for review is

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

12 that the Court previously granted in this petition is VACATED,

13 and any pending motion for a stay of removal in this petition

14 is DISMISSED as moot. Any pending request for oral argument in

15 this petition is DENIED in accordance with Federal Rule of

16 Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17 34.1(b).

18

19

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22