         10-1004-ag
         Zhang v. Holder
                                                                                         BIA
                                                                                 A077 047 520
                            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 2nd day of June, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PIERRE N. LEVAL,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _________________________________________
12
13       QUI XIA ZHANG, AKA AHHONGMS TAN,
14       AKA QIU XIA ZHANG,
15                Petitioner,
16
17                         v.                                      10-1004-ag
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:                Lee Ratner, Law Offices of Michael
25                                      Brown, New York, New York.
26
27       FOR RESPONDENT:                Tony West, Assistant Attorney
28                                      General; Richard M. Evans, Assistant
29                                      Director; Sharon M. Clay, Trial
30                                      Attorney, Office of Immigration
31                                      Litigation, United States Department
32                                      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

 4   is DENIED.

 5       Petitioner Qui Xia Zhang, a native and citizen of the

 6   People’s Republic of China, seeks review of the March 3,

 7   2010, decision of the BIA denying her motion to reopen.        In

 8   re Qui Xia Zhang, No. A077 047 520 (B.I.A. Mar. 3, 2010).

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

10   of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517 (2d

11   Cir. 2006).   When the BIA evaluates evidence of country

12   conditions submitted with a motion to reopen, we review its

13   findings for substantial evidence.   See Jian Hui Shao v.

14   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).     We assume the

15   parties’ familiarity with the underlying facts and

16   procedural history of the case.

17       The BIA’s denial of Zhang’s motion to reopen as

18   untimely was not an abuse of discretion.     A motion to reopen

19   generally must be filed no later than 90 days after the date

20   on which the final administrative decision has been rendered

21   in the proceedings sought to be reopened.     8 U.S.C. §

22   1229a(c)(7)(C)(i).   There is no dispute that Zhang’s 2009


                                   2
 1   motion was untimely, and number-barred, as it was her third

 2   such motion and the final administrative decision was issued

 3   in 2002.     See id.

 4       Moreover, the BIA did not abuse its discretion in

 5   declining to equitably toll the time for filing based on

 6   ineffective assistance of counsel, because it reasonably

 7   found that Zhang failed to demonstrate that she exercised

 8   due diligence in pursuing her claim of ineffective

 9   assistance of counsel.    Zhang received her case files from

10   her previous attorney in December 2002, and that attorney

11   asserted that she informed Zhang at that point that she

12   failed to timely file a brief in support of Zhang’s appeal.

13   Zhang did not disagree with that contention when asked to

14   comment by the Disciplinary Committee with which she filed a

15   complaint.    Thus, to the extent Zhang’s attorney’s

16   assistance was ineffective, Zhang knew, or should have

17   known, of the ineffective assistance in December 2002.

18   Consequently, the BIA did not abuse its discretion in

19   finding that Zhang did not exercise due diligence when,

20   after receiving her case files and learning that her

21   attorney had not timely filed a brief, she then waited more

22   than six years to allege ineffective assistance of counsel.


                                    3
 1   See Jian Hua Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007).

 2       In addition, the BIA’s determination that Zhang’s

 3   motion did not merit the exception to the time and number

 4   limitations for motions based on changed country conditions

 5   is supported by substantial evidence.   The BIA reasonably

 6   relied on the IJ’s underlying adverse credibility

 7   determination in declining to credit an affidavit from

 8   Zhang’s mother and an unauthenticated village committee

 9   notice.   See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149

10   (2d Cir. 2007).   Moreover, substantial evidence supports the

11   BIA’s finding that the evidence Zhang submitted regarding

12   the repression of Falun Gong practitioners in China shows

13   not that conditions have worsened, but that the repression

14   has been continuous since 1999.   See Jian Hui Shao, 546 F.3d

15   at 169.   As the BIA reasonably declined to credit either

16   the affidavit from Zhang’s mother, or the purported village

17   committee notice, and the evidence supports the BIA’s

18   finding that repression of Falun Gong practitioners has been

19   continuous, it did not abuse its discretion in concluding

20   that Zhang failed to demonstrate a change in conditions in

21   China, and that her practice of Falun Gong represented

22   merely a change in personal circumstances, not a change in


                                   4
 1   country conditions sufficient to excuse the untimely and

 2   number-barred filing.     See Wei Guang Wang v. BIA, 437 F.3d

 3   270, 274 (2d Cir. 2006).     To the extent the petitioner

 4   challenges the BIA’s discretionary decision to decline to

 5   exercise its sua sponte authority to reopen her removal

 6   proceedings, we lack jurisdiction to review the BIA’s

 7   decision.     See Ali, 448 F.3d at 518.

 8       For the foregoing reasons, the petition for review is

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

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

11

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14




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