         09-4015-ag
         Zheng v. Holder
                                                                                       BIA
                                                                               A072 837 771
                            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 28 th day of July, two thousand ten.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _______________________________________
12
13       JING WEI ZHENG,
14                Petitioner,
15
16                         v.                                   09-4015-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Fred Sichel, New York, New York.
24
1    FOR RESPONDENT:           Tony West, Assistant Attorney
2                              General; David V. Bernal, Assistant
3                              Director; Stuart S. Nickum, Trial
4                              Attorney, Office of Immigration
5                              Litigation, United States Department
6                              of Justice, Washington, D.C.

7        UPON DUE CONSIDERATION of this petition for review of a

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

9    hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

10   review is DENIED.

11       Jing Wei Zheng, a native and citizen of the People’s

12   Republic of China, seeks review of an August 28, 2009, order

13   of the BIA denying his motion to reopen. In re Jing Wei

14   Zheng, No. A072 837 771 (B.I.A. Aug. 28, 2009).        We assume

15   the parties’ familiarity with the underlying facts and

16   procedural history of this case.

17       We review the BIA’s denial of Zheng’s motion to reopen

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

19   (2d Cir. 2006).     An alien may file only one motion to reopen

20   and must do so within 90 days of the final administrative

21   decision.   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

22   However, there is no time or numerical limitation where the

23   alien establishes materially “changed country conditions

24   arising in the country of nationality.”     8 U.S.C.

25   § 1229a(c)(7) (C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

                                     2
1    Here, the BIA did not abuse its discretion in denying

2    Zheng’s motion to reopen, which was indisputably untimely.

3        Moreover, as the BIA found, Zheng’s legal custody of

4    his U.S.-citizen son was a change in his personal

5    circumstances, not a change in country conditions.    See Yuen

6    Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).    Although

7    Zheng argues that the 2007 State Department Country Report

8    for China indicates that “the Chinese government has been

9    pursuing and persecuting those who openly object the nation-

10   wide birth control policy,” the BIA reasonably determined

11   that such evidence demonstrated only a continuation of, not

12   a change in, China’s enforcement of the policy.

13   See 8 C.F.R. § 1003.2(b)(3)(ii ).   Moreover, because the BIA

14   found that Zheng failed to overcome the IJ’s underlying

15   adverse credibility determination with respect to his

16   claimed fear of persecution based on his opposition to

17   China’s birth control policy, even if the 2007 Country

18   Report demonstrated changed country conditions, Zheng would

19   still have failed to demonstrate his prima facie eligibility

20   for relief. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.

21   2005); see also INS v. Abudu, 485 U.S. 94, 104-05 (1988 ).

22   Finally, to the extent that Zheng seeks to rely on the 2008



                                   3
1    State Department Country Report for China to support his

2    contention, that Report was not submitted to the Board and

3    we therefore do not consider it on review.     See 8 U.S.C. §

4    1252(b)(4)(A) (noting that the scope of our review is

5    constrained to “the administrative record on which the

6    [challenged] order of removal is based”).     If we were to

7    consider it, we would reject the argument on its merits.

8        Lastly, this Court lacks jurisdiction to review Zheng’s

9    challenge to the BIA’s decision not to exercise its

10   authority under 8 C.F.R. § 1003.2(a), to reopen the

11   proceedings sua sponte, because such a decision is “entirely

12   discretionary.”   See Ali, 448 F.3d at 518.

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23




                                    4
