    09-2441-ag
    Dong v. Holder
                                                                                   BIA
                                                                          A 076 505 709
                      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.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 27 th day of May, two thousand ten.

    PRESENT:
             JON O. NEWMAN,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _______________________________________

    XIAN JIANG DONG,
             Petitioner,

                     v.                                    09-2441-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Thomas V. Massucci, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Michelle G. Latour,
                                  Assistant Director ; Michele Y.F.
                                  Sarko, Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, DC
    UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

    Xian Jiang Dong, a native and citizen of the People’s

Republic of China, seeks review of a May 14, 2009, order of

the BIA denying his motion to reopen. In re Xian Jiang Dong,

No. A 076 505 709 (B.I.A. May 14, 2009).     We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

    We review the BIA’s denial of Dong’s motion to reopen

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

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

and must do so within 90 days of the final administrative

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

However, there is no time or numerical limitation if the

alien establishes materially “changed country conditions

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

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

Here, the BIA did not abuse its discretion in denying Dong’s

motion to reopen, which was indisputably untimely.

    As the BIA found, Dong’s alleged membership in the



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Federation for Democracy in China was a change in his

personal circumstances, not a change in country conditions,

and cannot therefore be the basis of a finding of changed

circumstances so that the 90-day time limitation does not

apply.   Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.

2006).   Dong argues, however, that he has established not

only a change in his personal circumstances but also a

change in country conditions in China in that conditions for

pro-democracy activists publishing articles online (as he

has done) have worsened there since the time of the IJ’s

decision.   Neither this Court nor the BIA has squarely

addressed the question “whether a petitioner whose changed

personal conditions (which result in his falling into a

category of individuals threatened by changed country

conditions) can rely on those changed country conditions in

an untimely motion to reopen where the underlying change in

personal conditions postdated his order to depart.”     Fong

Chen v. Gonzales, 490 F.3d 180, 184 (2d Cir. 2007) (per

curiam), superseded on other grounds by Fong Chen v.

Mukasey, 255 Fed. Appx. 573 (2d Cir. 2007).

    Assuming arguendo that a petitioner in such a position

may rely on changed country conditions in support of a


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motion to reopen, however, the BIA did not abuse its

discretion in concluding that Dong had failed to make the

requisite showing.     Its determination that evidence that

“the Chinese government has tightened its censorship and

control of political dissent on the [I]nternet” did not

constitute a new form of persecution or a new prohibition on

pro-democracy activity, but merely reflected “an effort by

authorities to address another method of transmitting barred

material,” was not “devoid of any reasoning” or otherwise an

abuse of discretion.     See Kaur v. BIA, 413 F.3d 232, 233-34

(2d Cir. 2005).

    Dong now argues that the evidence he submitted in

connection with his motion to reopen established not only

that the Chinese government had increased its control of the

Internet but that it had more generally increased its

harassment and persecution of dissidents.     Only under a

generous reading of the affidavit that he submitted with his

motion to reopen can Dong be said to have made this as a

separate argument before the BIA, so that it is questionable

whether we may properly consider it now.     See Lin Zhong v.

U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

Assuming that we may, we note that amidst more than two



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hundred pages of documents submitted along with his motion,

Dong now points primarily to two sentences contained in two

Department of State Country Reports on Human Rights

Practices in China indicating, in general terms, that

harassment and detention of individuals perceived as

critical of or threatening to government authority had

increased in 2005 and 2006.    Given the “heavy burden” that

an alien seeking to reopen his case carries, INS v. Abudu,

485 U.S. 94, 110 (1988), we are not prepared to hold that

the BIA abused its discretion in denying Dong’s motion based

on this record.

    For the foregoing reasons, the petition for review is

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

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



                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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