         09-0476-ag
         Weng v. Holder
                                                                                       BIA
                                                                               A077 977 489
                           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 15 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                       Circuit Judges.
11       ______________________________________
12
13       YAN ZHENG WENG,
14                Petitioner,
15                                                              09-0476-ag
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL, BOARD OF
20       IMMIGRATION APPEALS,
21                Respondents.
22       ______________________________________
 1   FOR PETITIONER:           Thomas D. Barra, Barra & Ieraci,
 2                             Forest Hills, New York.
 3
 4   FOR RESPONDENTS:          Tony West, Assistant Attorney
 5                             General; Anh-Thu P. Mai-Windle,
 6                             Senior Litigation Counsel; James A.
 7                             Hurley, Attorney, Office of
 8                             Immigration Litigation, United
 9                             States Department of Justice,
10                             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, Yan Zheng Weng, a native and citizen of the

17   People’s Republic of China (“China”), seeks review of a

18   January 9, 2009 order of the BIA denying her motion to

19   reopen her removal proceedings.     In re Yan Zheng Weng, No.

20   A 077 977 489 (B.I.A. Jan. 9, 2009).     We assume the parties’

21   familiarity with the underlying facts and procedural history

22   of the case.

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

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

25   Cir. 2006).    Where the BIA considers relevant evidence of

26   country conditions in evaluating a motion to reopen, we

27   review the BIA’s factual findings under the substantial

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

29   138, 169 (2d Cir. 2008).

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

2    so within 90 days of the final administrative decision.

3    8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).       There is

4    no dispute that Weng’s second motion to reopen was both

5    untimely and numerically barred.     However, there is no time

6    or numerical limitation where the alien establishes

7    materially “changed circumstances arising in the country of

8    nationality.”     8 C.F.R. § 1003.2(c)(3)(ii).

9        The BIA found that Weng failed to demonstrate any

10   change in the Chinese government’s treatment of political

11   dissidents.     The BIA further found that the changed

12   circumstance Weng alleged – her recent membership in the

13   Christian Democracy Party – reflected a personal change, not

14   a change in country conditions.

15       Weng does not challenge the BIA’s determination that

16   her membership in the CDP constitutes only a change in her

17   personal circumstances, and not a change in country

18   conditions.     This is fatal to her claim, as it is

19   well-settled that a change in personal circumstances does

20   not suffice to establish an exception to the timeliness

21   requirement under 8 C.F.R. § 1003.2(c)(3)(ii). See Li Yong

22   Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130-31 (2d



                                     3
1    Cir. 2005) (finding that a change in personal circumstances

2    does not establish an exception to the filing deadline for

3    motions to reopen); cf. Wei Guang Wang v. BIA, 437 F.3d 270,

4    273-74 (2d Cir. 2006) (“[I]t would be ironic, indeed, if

5    petitioners . . . who have remained in the United States

6    illegally following an order of deportation, were permitted

7    to have a second and third bite at the apple simply because

8    they managed to marry and have children while evading

9    authorities. This apparent gaming of the system in an effort

10   to avoid deportation is not tolerated by the existing

11   regulatory scheme.”).

12       Regardless, because Weng refers only to a very general

13   “deterioration” in the Chinese government’s overall human

14   rights record, she has failed to demonstrate a material

15   change in circumstances regarding the treatment of political

16   dissidents in China.    See 8 C.F.R. § 1003.2(c)(3)(ii).

17   Thus, we find that the BIA did not abuse its discretion in

18   denying the motion to reopen as untimely and number-barred.

19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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



                                    4
1   this petition is DISMISSED as moot. Any pending request for

2   oral argument in this petition is DENIED in accordance with

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

4   Circuit Local Rule 34(b).

5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8
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