         13-2228
         Zhang v. Holder
                                                                                       BIA
                                                                               A079 456 543
                                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 1st day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       QI QING ZHANG,
14                Petitioner,
15
16                         v.                                   13-2228
17                                                              NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                 Thomas D. Barra, New York, New York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
27                                       General; Francis W. Fraser, Senior
28                                       Litigation Counsel; Timothy B.
29                                       Stanton, Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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       Qi Qing Zhang, a native and citizen of the People’s

 6   Republic of China, seeks review of a May 14, 2013, decision

 7   of the BIA denying his motion to reopen.     In re Qi Qing

 8   Zhang, No. A079 456 543 (B.I.A. May 14, 2013).     We assume

 9   the parties’ familiarity with the underlying facts and

10   procedural history of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “‘disfavored.’”     Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15   Doherty, 502 U.S. 314, 323 (1992)).    When the BIA considers

16   relevant evidence of country conditions in evaluating a

17   motion to reopen, we review the BIA’s factual findings under

18   the substantial evidence standard.    See Jian Hui Shao v.

19   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

20       In this case, it is undisputed that Zhang’s 2013 motion

21   to reopen was untimely because the BIA issued his final

22   order of removal in 2005.   See 8 U.S.C. § 1229a(c)(7)(C)(i)


                                   2
 1   (providing a 90-day period for moving to reopen); see also

 2   8 C.F.R. § 1003.2(c)(2) (same).   However, the time

 3   limitation for filing a motion to reopen does not apply if

 4   the motion “is based on changed country conditions arising

 5   in the country of nationality or the country to which

 6   removal has been ordered, if such evidence is material and

 7   was not available and would not have been discovered or

 8   presented at the previous proceeding.”   8 U.S.C.

 9   § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

10       The BIA did not err in finding that Zhang failed to

11   demonstrate a material change in the Chinese government’s

12   treatment of Falun Gong practitioners since the time of his

13   2004 proceedings before the IJ.   As the BIA found, the

14   record evidence demonstrated that the Chinese government had

15   prohibited and punished severely the practice of Falun Gong

16   since 1999.   Moreover, contrary to Zhang’s contention, a

17   U.S. Department of State report’s reference to the Chinese

18   government’s harvesting of organs from prisoners, including

19   Falun Gong practitioners, is not a recent development

20   establishing a material change in country conditions.     See

21   Legislative Review Activities, H.R. Rep. 107-803, at 38

22   (2003)(noting that the House Committee on International


                                   3
 1   Relations held a hearing on June 27, 2001, titled: “Organs

 2   for Sale: China’s Growing Trade and Ultimate Violations of

 3   Prisoners’ Rights”); see also 8 U.S.C. § 1182f(a) (denying

 4   entry into the United States to Chinese nationals engaged in

 5   coerced organ transplantation).

 6       Because the record evidence does not compel the

 7   conclusion that the treatment of Falun Gong practitioners

 8   has materially changed since the time of Zhang’s hearing

 9   before the IJ, the BIA did not abuse its discretion in

10   denying his motion to reopen as untimely.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

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




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