         09-5096-ag
         Zhang v. Holder
                                                                                       BIA
                                                                               A075 962 501
                            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 7 th day of September, two thousand ten.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _______________________________________
12
13       XUE BING ZHANG,
14                Petitioner,
15
16                         v.                                         09-5096-ag
17                                                                    NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Lee Ratner, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Michelle Gorden Latour,
27                                     Assistant Director; Matt A. Crapo,
28                                     Trial Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
31
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 Xue Bing Zhang, a native and citizen of

6    China, seeks review of a November 18, 2009 order of the BIA

7    denying her motion to reconsider and reopen.     In re Xue Bing

8    Zhang, No. A075 962 501 (B.I.A. Nov. 18, 2009).     We assume

9    the parties’ familiarity with the underlying facts and

10   procedural history in this case and note that this was

11   Zhang’s fifth motion filed before the BIA.

12       We review the BIA’s denial of a motion to reopen or

13   reconsider for abuse of discretion.    See Kaur v. BIA, 413

14   F.3d 232, 233 (2d Cir. 2005) (per curiam).     Here, the BIA

15   reasonably denied Zhang’s motion to reconsider because she

16   failed to show any error in fact or law in the BIA’s prior

17   decision.    See 8 C.F.R. § 1003.2(b)(1); Ke Zhen Zhao v. U.S.

18   Dep’t of Justice, 265 F.3d 83, 90 (2d Cir. 2001).     Contrary

19   to Zhang’s arguments, the BIA reasonably declined to credit

20   her unauthenticated evidence based on the IJ’s underlying

21   adverse credibility determination.    See Qin Wen Zheng v.

22   Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).     Furthermore,


                                    2
1    the BIA did not err in finding no error in fact or law in

2    its prior decision, where it relied on State Department

3    reports, noted that Zhang voluntarily sent her United States

4    citizen child back to China, and highlighted other

5    authenticity concerns with her evidence, to conclude that

6    Zhang failed to overcome the prior adverse credibility

7    determination with credible evidence.   See Xiao Ji Chen v.

8    U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006); Tu

9    Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006); Melgar de

10   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

11       With respect to her untimely and number-barred motion to

12   reopen, the BIA did not abuse its discretion in finding that

13   Zhang failed to establish either a change in country

14   conditions or her prima facie eligibility for relief.     See

15   Kaur, 413 F.3d at 233.   The BIA also reasonably noted that

16   Zhang failed to attach an updated asylum application to her

17   motion, which is a requirement of establishing prima facie

18   eligibility.   See 8 C.F.R. § 1003.2(c)(1); see also INS v.

19   Abudu, 485 U.S. 94, 104-05 (1988) (failure to establish

20   prima facie eligibility for relief is a ground upon which a

21   motion to reopen may be denied).   In addition, the BIA

22   considered the evidence she submitted, and, in light of the

                                   3
1    prior adverse credibility determination as well as

2    evidentiary and authenticity concerns, reasonably concluded

3    that she failed to establish a material change in country

4    conditions in China based either on her Falun Gong practice

5    or the family planning policy.       See Wei Guang Wang v. BIA,

6    437 F.3d 270 (2d Cir. 2006); Jian Hui Shao v. Mukasey, 546

7    F.3d 138, 161-62 (2d Cir. 2008).

8        For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

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

15   Circuit Local Rule 34(b).

16                                FOR THE COURT:
17                                Catherine O’Hagan Wolfe, Clerk
18




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