         09-5249-ag
         Zhu v. Holder
                                                                                       BIA
                                                                               A077 340 853
                          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 2 nd day of July, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                         Circuit Judges.
11       ______________________________________
12
13       BING ZHU, ALSO KNOWN AS BIN CHOU,
14       ALSO KNOWN AS YUAN CHEN, ALSO KNOWN
15       AS BING HU,
16                Petitioner,
17                                                              09-5249-ag
18                       v.                                     NAC
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:               Gary J. Yerman, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General, Civil Division; M. Jocelyn
29                                     Lopez Wright, Senior Litigation
30                                     Counsel, Office of Immigration
31                                     Litigation; Leslie McKay, Assistant
32                                     Director, Office of Immigration
33                                     Litigation, United States Department
34                                     of Justice, Washington, D.C.
1          UPON DUE CONSIDERATION of this petition for review of a

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

3    ORDERED, ADJUDGED, AND DECREED that the petition for review is

4    DENIED.

5          Petitioner Bing Zhu, a native and citizen of the People’s

6    Republic of China, seeks review of a November 27, 2009 order

7    of    the   BIA   denying    his      motion   to    reopen   his    removal

8    proceedings.      In re Bing Zhu, No. A 077 340 853 (B.I.A. Nov.

9    27,   2009).      We   assume   the    parties’     familiarity     with   the

10   underlying facts and procedural history of the case.

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

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

13   Cir. 2006).       When the BIA considers relevant evidence of

14   country conditions in evaluating a motion to reopen, we review

15   the BIA’s factual findings under the substantial evidence

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

17   Cir. 2008).

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

19   so within 90 days of the final administrative decision.

20   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).               There is no

21   dispute that Zhu’s motion to reopen — filed over five years

22   after the BIA issued a final order in his case – was untimely.

23   However, there is no time limitation if the alien establishes

                                            2
1    materially “changed circumstances arising in the country of

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

3           The BIA found that the changed circumstance Zhu alleged

4    – his recent conversion to Christianity – reflected a change

5    in personal circumstances, not a change in country conditions.

6    It     is     well-settled         that   such        a    change   in    personal

7    circumstances does not suffice to establish an exception to

8    the timeliness requirement under 8 C.F.R. § 1003.2(c)(3)(ii).

9    See Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129,

10   130-31 (2d Cir. 2005).

11          Zhu argues, however, that the BIA’s finding that he did

12   not establish changed country conditions was flawed because it

13   erred by:       (1) faulting him for submitting evidence only of

14   recent       conditions       in     China,      as       opposed   to    evidence

15   demonstrating changed country conditions; and (2) failing to

16   take    administrative        notice      of   country      reports   that     could

17   evidence such a change in country conditions.                         Contrary to

18   these       arguments,   it   was    Zhu’s     burden      to   present   evidence

19   demonstrating changed country conditions.                       See 8 U.S.C.

20   § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)(1).                       Because the BIA

21   reasonably found that Zhu did not submit evidence establishing

22   a change in circumstances from the time of the IJ’s 2002

23   decision in this case, but only evidence regarding recent

                                               3
1    conditions in China, the BIA did not abuse its discretion in

2    denying Zhu’s untimely motion to reopen.                 See Zheng Zhong Chen

3    v. Gonzales, 437 F.3d 267, 269-70 (2d Cir. 2006).                         To the

4    extent    Zhu   argues      that   the    BIA    erred   by   failing    to   take

5    administrative notice of evidence not in the record, it was

6    under no obligation to do so.             See Hoxhallari v. Gonzales, 468

7    F.3d   179,     186   n.5   (2d    Cir.       2006)   (noting   that    BIA   “may

8    exercise independent          discretion to           take judicial notice of

9     . . . changes in a country’s politics” (emphasis added)).

10          For the foregoing reasons, the petition for review is

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

12   that the Court previously granted in this petition is VACATED,

13   and any pending motion for a stay of removal in this petition

14   is DISMISSED as moot. Any pending request for oral argument in

15   this petition is DENIED in accordance with Federal Rule of

16   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

17   34.1(b).

18
19
20                                        FOR THE COURT:
21                                        Catherine O’Hagan Wolfe, Clerk
22




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