09-245 2-ag

Zhengv.Holder BIA A078 287 082 

### UNITED STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CIT AT IO N TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMI TTED 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 22 day of June, two thousand ten. nd 5 6 PRESENT: 7 RALPH K. WINTER, 8 JOSÉ A. CABRANES, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges . 11

_________________________________________ 12 13 SHOU ZHENG, aka SHOU FENG ZHENG, 14 Petitioner , 15 16 v. 09-2452-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_________________________________________ 22 23 FOR PETITIONER: Kevin Long, Monterey Park, 24 California. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Daniel E. Goldman, Senior 28 Litigation Counsel; Yamileth G. 29 Handuber, Trial Attorney, Civil 30 Division, Office of Immigration 31 Litigation, United States Department 32 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 4 is DENIED. 5 Petitioner Shou Zheng, a native and citizen of the 6 People’s Republic of China, seeks review of the May 14, 7 2009, order of the BIA, which denied her motion to reopen 8 and reconsider. In re Shou Zheng , No. A078 287 082 (B.I.A. 9 May 14, 2009). We assume the parties’ familiarity with the 1 0 underlying facts and procedural history of the case. 1 1 In denying Zheng’s motion, the BIA construed it as both 1 2 a motion to reopen and reconsider. The substantive 1 3 standards for each motion are distinct. Whereas a motion to 1 4 reconsider must specify errors of fact or law in the BIA’s 1 5 prior decision, see8 C.F.R. § 1003.2(b)(1), an untimely 1 6 motion to reopen must establish changed country conditions, 1 7 8 C.F.R. § 1003.2(c)(3)(ii); see Jian Hui Shao v. Mukasey , 1 8 546 F.3d 138, 169 (2d Cir. 2008). Here, as the Government 1 9 argues, Zheng fails to challenge the BIA’s denial of her 2 0 motion to reconsider. Accordingly, we deem any such 2 1 argument waived. See Yueqing Zhang v. Gonzales , 426 F.3d 2 2 540, 541 n.1, 545 n.7 (2d Cir. 2005) .3 1 We further find that the BIA did not abuse its 2 discretion in denying Zheng’s motion to reopen. Zheng does 3 not dispute that her motion to reopen was untimely. Rather, 4 she argues that the BIA erred by calling her credibility 5 into question in denying that motion. However, the BIA 6 reasonably found that even assuming Zheng had shown a change 7 in country conditions regarding religious persecution in 8 China, she failed to demonstrate that the change was 9 material to her claim. See 8 C.F.R. § 1003.2(c)(3)(ii). 1 0 The BIA explained that, although Zheng stated that the 1 1 Chinese government intercepted a Bible which she mailed to 1 2 her mother, her mother’s affidavit did not mention this 1 3 incident, and the postal receipt Zheng submitted “does not 1 4 show what was mailed, who mailed it, or who was the intended 1 5 recipient.” In other words, the BIA did not believe that 1 6 Zheng, who claimed in her underlying proceedings that she 1 7 feared persecution under China’s family planning policy, had 1 8 actually become a member of a Christian sect and feared 1 9 persecution on that basis. That finding was particularly 2 0 appropriate given the adverse credibility finding the IJ had 2 1 made in the underlying proceeding. See Qin Wen Zheng v. 22 Gonzales , 500 F.3d 143, 147 (2d Cir. 2007) (relying on the4 1 doctrine falsus in uno, falsus in omnibus to conclude that 2 the agency may decline to credit documentary evidence 3 submitted with a motion to reopen by an alien who was found 4 not credible in the underlying proceeding) (citing Siewe v. 5 Gonzales , 480 F.3d 160, 170 (2d Cir. 2007)). 6 Despite Zheng’s argument, the BIA also did not err in 7 relying on the lack of corroboration for her claim that the 8 Chinese government was aware of her activities with the 9 Shouters, noting that she failed to present “any document 1 0 issued by the authorities to her.” See Hongsheng Leng v. 11 Mukasey , 528 F.3d 135, 143 (2d Cir. 2008). This Court has 1 2 observed that asylum applicants may not always be expected 1 3 to produce evidence from their alleged persecutors. See Qin 14 Wen Zheng , 500 F.3d at 147. Here, however, given the BIA’s 1 5 reasonable suspicion regarding Zheng’s credibility, it was 1 6 entitled to decline to reopen her proceedings in the absence 1 7 of probative evidence. Id. 1 8 Additionally, contrary to Zheng’s assertion, the BIA 1 9 acted within its discretion in finding implausible her 2 0 statement that she did not become aware of the Chinese 2 1 government’s persecution of the Shouters until after she was 2 2 told about it by her mother in April 2008. The BIA 2 3 explained that it was inherently unbelievable that she would5 1 not be aware of such persecution earlier, because she did 2 not leave China until 2000 and the Department of State 3 Report stated that “beginning in the 1980‘s, the Chinese 4 government banned groups which it determined to be cults, 5 including the ‘Shouters’ and several other Protestant 6 Christian groups.” See Ying Li v. BCIS, 529 F.3d 79, 82 (2d 7 Cir. 2008). 8 Ultimately, because the BIA did not err in finding that 9 Zheng failed to demonstrate a material change in country 1 0 conditions, see Jian Hui Shao , 546 F.3d at 169-72, it did 1 1 not abuse its discretion in denying her motion to reopen. 12 See 8 C.F.R. § 1003.2(c)(1).

For the foregoing reasons, the petition for review is 13 1 4 DENIED. As we have completed our review, any stay of 1 5 removal that the Court previously granted in this petition 1 6 is VACATED, and any pending motion for a stay of removal in 1 7 this petition is DISMISSED as moot. Any pending request for 1 8 oral argument in these petitions is DENIED in accordance 1 9 with Federal Rule of Appellate Procedure 34(a)(2), and 2 0 Second Circuit Local Rule 34.1(b). 2 1 FOR THE COURT: 2 2 Catherine O’Hagan Wolfe, Clerk 23 24