         12-1409
         Zhu v. Holder
                                                                                       BIA
                                                                               A077 309 027
                                                                               A077 309 028
                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 8th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       HAN YING ZHU, AKA HAN YING ZHOU, DA
14       GAO,
15                Petitioners,
16
17                       v.                                     12-1409
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Dehai Zhang, Flushing, NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Shelley R. Goad,
28                                     Assistant Director; Russell J.E.
29                                     Verby, Trial Attorney, Office of
 1                           Immigration Litigation, United
 2                           States Department of Justice,
 3                           Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

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

 8   is DENIED.

 9       Petitioners Han Ying Zhu and Da Gao, mother and son and

10   natives and citizens of China, seek review of a March 12,

11   2012, decision of the BIA denying their motion to reopen

12   their removal proceedings.     In re Han Ying Zhu, Da Gao, Nos.

13   A077 309 027/28 (B.I.A. Mar. 12, 2012). We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

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

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

18   (2d Cir. 2006) (per curiam).    An alien seeking to reopen

19   proceedings is required to file a motion to reopen no later

20   than 90 days after the date on which the final

21   administrative decision was rendered and is permitted to

22   file only one such motion.     See 8 U.S.C. § 1229a(c)(7)(A),

23   (C); 8 C.F.R. § 1003.2(c)(2).       There is no dispute that

24   Petitioners’ third motion to reopen, filed in November 2011,

25   was untimely and number-barred because their orders of

                                     2
 1   removal became final in September 2005.     See 8 U.S.C.

 2   § 1101(a)(47)(B)(i).

 3       Petitioners contend, however, that the Chinese

 4   government’s awareness of Zhu’s pro-democracy activities in

 5   the United States constitutes a material change in country

 6   conditions excusing their motion from the applicable time

 7   and numerical limitations.   See 8 U.S.C.

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

 9       Notwithstanding Petitioners’ arguments to the contrary,

10   the BIA did not abuse its discretion in finding that they

11   failed to demonstrate a material change of conditions in

12   China.   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

13   Cir. 2008); see also In re S-Y-G-, 24 I. & N. Dec. 247, 253

14   (B.I.A. 2007) (“In determining whether evidence accompanying

15   a motion to reopen demonstrates a material change in country

16   conditions that would justify reopening, [the BIA]

17   compare[s] the evidence of country conditions submitted with

18   the motion to those that existed at the time of the merits

19   hearing below.”).   As the BIA reasonably determined, Zhu’s

20   membership in the China Democracy Party (“CDP”) and

21   pro-democracy activities in the United States constitute

22   changed personal circumstances, which are insufficient to


                                   3
 1   excuse the untimely and number-barred filing of Petitioners’

 2   motion to reopen.   See Wei Guang Wang v. BIA, 437 F.3d 270,

 3   273-74 (2d Cir. 2006) (making clear that the time and

 4   numerical limitations on motions to reopen may not be

 5   suspended because of a “self-induced change in personal

 6   circumstances” that is “entirely of [the applicant’s] own

 7   making after being ordered to leave the United States”);

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

 9   (concluding that the system does not permit aliens who have

10   been ordered removed “to disregard [those] orders and remain

11   in the United States long enough to change their personal

12   circumstances (e.g., by having children or practicing a

13   persecuted religion) and initiate new proceedings via a new

14   asylum application”).    Similarly, although Petitioners argue

15   that they established their entitlement to reopening through

16   individualized evidence demonstrating the Chinese

17   government’s awareness of Zhu’s CDP activities in the United

18   States, we have consistently rejected the argument that a

19   foreign government’s subsequent awareness of a petitioner’s

20   United States activities alone constitutes a material change

21   in country conditions.

22



                                    4
 1          Contrary to Petitioners’ assertion, the BIA did not

 2   abuse its discretion in finding that the country conditions

 3   evidence reflected a continuation of the Chinese

 4   government’s suppression of pro-democracy activists that

 5   existed at the time of their 2004 merits hearing rather than

 6   a material change.    See In re S-Y-G-, 24 I. & N. Dec. at

 7   253.    While Petitioners also appear to suggest that they

 8   established changed country conditions based on a CDP

 9   statement submitted in support of a prior motion to reopen,

10   Petitioners did not seek review of the BIA’s denial of their

11   prior motion, which explicitly considered this evidence and

12   found it insufficient to warrant reopening.    Petitioners’

13   contention that the BIA placed undue weight on Zhu’s

14   underlying adverse credibility determination is also without

15   merit because the BIA assumed the reliability of their

16   evidence.

17          Because the BIA did not abuse its discretion in finding

18   that Petitioners failed to establish a material change in

19   country conditions, we do not address their prima facie

20   eligibility for asylum, withholding of removal, and relief

21   under the Convention Against Torture.    See INS v.

22   Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).

23
                                    5
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

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

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

6    oral argument in this petition is DENIED in accordance with

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

8    Circuit Local Rule 34.1(b).

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




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