         08-6198-ag
         Dong v. Holder
                                                                                       BIA
                                                                               A077 322 364
                            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 5 th day of February, two thousand ten.
 5
 6       PRESENT:
 7                        ROSEMARY S. POOLER,
 8                        BARRINGTON D. PARKER,
 9                        RICHARD C. WESLEY,
10                                 Circuit Judges.
11
12       _________________________________________
13
14       YAN ZHEN DONG,
15                Petitioner,
16
17                        v.                                    08-6198-ag
18                                                              NAC
19       ERIC H. HOLDER JR., UNITED STATES
20       ATTORNEY GENERAL, *
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:               Andre Sobolevsky, New York, New
25                                     York.


                 *
                Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
1    FOR RESPONDENT:           Tony West, Assistant Attorney
2                              General; Russell J. E. Verby, Senior
3                              Litigation Counsel; John D.
4                              Williams, Trial Attorney, Office of
5                              Immigration Litigation, United
6                              States Department of Justice,
7                              Washington, D.C.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner Yan Zhen Dong, a native and citizen of the

14   People’s Republic of China, seeks review of a December 8,

15   2008 order of the BIA denying her motion to reopen.       In re

16   Yan Zhen Dong, No. A077 322 364 (B.I.A. Dec. 8, 2008).       We

17   assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

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

20   abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233 (2d

21   Cir. 2005) (per curiam).     An alien seeking to reopen

22   proceedings must file her motion to reopen no later than 90

23   days after the date on which the final administrative

24   decision was rendered.     See 8 C.F.R. § 1003.2(c)(2).

25   However, there is no time limit for filing a motion to

26   reopen if it is “based on changed circumstances arising in


                                     2
1    the country of nationality or in the country to which

2    deportation has been ordered, if such evidence is material

3    and was not available and could not have been discovered or

4    presented at the previous hearing.”    8 C.F.R.

5    § 1003.2(c)(3)(ii).    In this case, the BIA reasonably found

6    that Dong’s motion to reopen did not qualify for such an

7    exception.    Indeed, Dong neither raised such an argument in

8    her motion to reopen nor submitted any objective evidence of

9    country conditions in China.

10       Moreover, contrary to Dong’s argument, the BIA did not

11   err in relying on the underlying adverse credibility

12   determination in declining to credit her unauthenticated

13   evidence.    See Qin Wen Zheng v. Gonzales, 500 F.3d 143,

14   146-47 (2d Cir. 2007); see also Siewe v. Gonzales, 480 F.3d

15   160, 170 (2d Cir. 2007).    Additionally, the BIA did not

16   abuse its discretion by declining to consider the 2007 U.S.

17   State Department Country Report on Human Rights Practices in

18   China (“2007 Country Report”) because that document was not

19   in the record.    See Ke Zhen Zhao v. U.S. Dep’t of Justice,

20   265 F.3d 83, 93 (2d Cir. 2001).    We will not remand for

21   consideration of such evidence.    See Xiao Xing Ni v.

22   Gonzales, 494 F.3d 260, 261-62 (2d Cir. 2007).    Regardless,


                                    3
1    Dong cites portions of the 2007 Country Report that describe

2    continuity in the enforcement of China’s family planning

3    policy as opposed to a change in conditions.

4        For the foregoing reasons, the petition for review is

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

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

 7                               FOR THE COURT:
 8                               Catherine O’Hagan Wolfe, Clerk
 9
10
11




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