Pursuant to Federal Rule of Appellate Procedure *

43(c)(2), Attorney General Eric H. Holder, Jr. is

automatically substituted for former Attorney General

Alberto R. Gonzales as a respondent in this case.

091409-22

07-4833-ag

Zheng v. Holder

BIA

A073 176 324

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 19 day of November, two thousand nine. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JON. O. NEWMAN, 

10 PIERRE N. LEVAL,

11 Circuit Judges. 

12 _________________________________________

13

14 DENG DI ZHENG,

15 Petitioner, 

16

17 v. 07-4833-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL, UNITED STATES *

21 DEPARTMENT OF JUSTICE,

22 Respondents.

23 _________________________________________
2

1 FOR PETITIONER: Bruno Joseph Bembi, Hempstead, New

2 York.

3

4 FOR RESPONDENTS: Jeffrey S. Bucholtz, Acting

5 Assistant Attorney General; M.

6 Jocelyn Lopez Wright, Assistant

7 Director; Eric W. Marsteller, Trial

8 Attorney, Office of Immigration

9 Litigation, United States Department

10 of Justice, Washington, D.C.

11

12 UPON DUE CONSIDERATION of this petition for review of a

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

14 ORDERED, ADJUDGED, AND DECREED, that the petition for review

15 is DENIED. 

16 Petitioner Deng Di Zheng, a native and citizen of the

17 People’s Republic of China, seeks review of an October 16,

18 2007 order of the BIA denying his motion to reopen. In re

19 Deng Di Zheng, No. A073 176 324 (B.I.A. Oct. 16, 2007). We

20 assume the parties’ familiarity with the underlying facts

21 and procedural history in this case.

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

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

24 Cir. 2006). When the agency considers relevant evidence of

25 country conditions in evaluating a motion to reopen, we

26 review the agency’s factual findings under the substantial

27 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
3

1 138, 169 (2d Cir. 2008). 

2 The BIA did not err in denying Zheng’s untimely motion

3 to reopen. See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.

4 § 1003.2(c)(2). Zheng argues that the BIA erred in finding

5 that he failed to produce evidence demonstrating material

6 changed country conditions sufficient to excuse the untimely

7 filing of his motion to reopen. However, we have previously

8 reviewed the BIA’s consideration of evidence similar to that

9 which Zheng submitted and have found no error in its

10 conclusion that such evidence is insufficient to establish

11 either material changed country conditions or a reasonable

12 possibility of persecution. See Jian Hui Shao, 546 F.3d at

13 169-73 (noting that “[w]e do not ourselves attempt to

14 resolve conflicts in record evidence, a task largely within

15 the discretion of the agency”); see also Wei Guang Wang v.

16 BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the

17 BIA must consider evidence such as “the oft-cited Aird

18 affidavit, which [it] is asked to consider time and again[,]

19 . . . it may do so in summary fashion without a reviewing

20 court presuming that it has abused its discretion”). 

21 The BIA’s determination that Zheng was ineligible to

22 file a successive asylum application was not in error. See
4

1 Yuen Jin v. Mukasey, 538 F.3d 143, 156, 158-59 (2d Cir.

2 2008). 

3 For the foregoing reasons, the petition for review is

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

5 removal that the Court previously granted in this petition

6 is VACATED, and any pending motion for a stay of removal in

7 this petition is DISMISSED as moot. Any pending request for

8 oral argument in this petition is DENIED in accordance with

9 Federal Rule of Appellate Procedure 34(a)(2), and Second

10 Circuit Local Rule 34(b).

11 FOR THE COURT: 

12 Catherine O’Hagan Wolfe, Clerk

13

14 By:___________________________