12-17

Zhan v. Holder

BIA

A079 453 032

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 20th day of March, two thousand thirteen.

PRESENT:

JOSÉ A. CABRANES,

ROBERT D. SACK,

SUSAN L. CARNEY,

Circuit Judges.

_______________________________________

JIN XIA ZHAN, AKA JINXIA ZHAN,

Petitioner, 

 v. 12-17

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

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

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Francis W. Fraser,

Senior Litigation Counsel; Jacob A.

Bashyrov, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Jin Xia Zhan, a native and citizen of the People’s

Republic of China, seeks review of a December 8, 2011 order

of the BIA denying her motion to reopen her removal

proceedings. In re Jin Xia Zhan, No. A079 453 032 (B.I.A.

Dec. 8, 2011). We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

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

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

(2d Cir. 2006). Here, the BIA did not abuse its discretion

by denying Zhan’s 2011 motion to reopen as untimely, as it

was filed over five years after Zhan’s 2005 final order of

removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. 

§ 1003.2(c)(2). Although the time and numerical limits on

motions to reopen may be excused when the movant

demonstrates changed country conditions, 8 U.S.C.

§ 1229a(c)(7)(C)(ii), the BIA reasonably concluded that Zhan

did not demonstrate a material change. See Jian Hui Shao v.

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

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BIA’s factual findings regarding changed country conditions

under the substantial evidence standard). 

As an initial matter, the record does not support

Zhan’s contention that the BIA did not sufficiently consider

all of her evidence, as the BIA explicitly addressed country

conditions at the time of her hearing as well as the

evidence she presented to show recent changes. 

As the BIA found, Zhan’s conversion to Christianity in

the United States is a change in her personal circumstances,

not a material change in country conditions. See Wei Guang

Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir. 2006). 

Additionally, substantial evidence supports the BIA’s

conclusion that Zhan’s evidence displayed a “continuation”

rather than a material change of conditions for Christians

in Fujian Province. As the BIA noted, the 1998 Country

Profile prepared by the Bureau of Democracy, Human Rights

and Labor of the United States Department of State reports

that prior to Zhan’s merits hearing, there were police

raids, detentions, and disappearances of Christian leaders

in China and repression of congregations in Fujian Province. 

A 2009 China Aid Association Annual Report suggests that

those conditions remained unchanged, since it does not

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include Fujian Province in its list of localities that

experienced an increase or decrease in persecution. See

Matter of S-Y-G-, 24 I. & N. Dec 247, 253 (BIA 2007) (“In

determining whether evidence accompanying a motion to reopen

demonstrates a material change in country conditions that

would justify reopening, [the BIA] compare[s] the evidence

of country conditions submitted with the motion to those

that existed at the time of the merits hearing below.”).1 

Contrary to Zhan’s contention, the BIA did not abuse

its discretion by giving “minimal weight” to the letter Zhan

submitted from a friend, which described the friend’s 2010

arrest in Fujian Province for attending a house church. 

Since Zhan had been found not credible in the underlying

proceedings, the BIA had no obligation to ascribe further

credit to the letter, which in any event concerned

allegations of only a single instance of interference with

worship. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 342 (2d Cir. 2006); see also Qin Wen Zheng v.

Gonzales, 500 F.3d 143, 148 (2d Cir. 2007) (holding that the

1 Our review is limited to the record before the

agency. See 8 U.S.C. § 1252(b)(4)(A). In the

circumstances presented here, we decline Zhan’s request

to take judicial notice of the 2002 State Department

Country Report. 

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BIA did not abuse its discretion in declining to credit

documents submitted with a motion to reopen where alien had

been found not credible in the underlying asylum hearing). 

Accordingly, we find no error in the BIA’s conclusion that

Zhan failed to demonstrate materially changed country

conditions that would excuse the untimely filing of her

motion. See 8 U.S.C. § 1229a(c)(7)(C).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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