    09-3022-ag
    Zheng v. Holder
                                                                                  BIA
                                                                             Weisel, IJ
                                                                          A072 054 646
                       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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 21st day of October, two thousand ten.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _______________________________________

    JIAN GAN ZHENG,
             Petitioner,

                      v.                                   09-3022-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Gary J. Yerman, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Cindy S. Ferrier, Senior
                                  Litigation Counsel; Joseph A.
                                  O’Connell, Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

     Jian Gan Zheng, a native and citizen of the People’s

Republic of China, seeks review of a December 3, 2009, order

of the BIA affirming the December 5, 2007, decision of the

Immigration Judge (“IJ”), Robert D. Weisel, denying his

second motion to reopen. In re Jian Gan Zheng, No. A072 054

646 (B.I.A. Dec. 3, 2009), aff’g No. A072 054 646     (Immig.

Ct. N.Y. City Dec. 5, 2007).   We assume the parties’

familiarity with the underlying facts and procedural history

of this case.

I.   Jurisdiction

     Although Zheng’s July 2009 petition for review pre-

dated the BIA’s December 2009 amended final order of

removal, we retain jurisdiction to entertain the instant

petition for review.   See Lewis v. Gonzales, 481 F.3d 125,

129 (2d Cir. 2007) (exercising jurisdiction over otherwise

premature petition, notwithstanding lack of later-filed,

timely petition, “when the BIA ha[d] since affirmed

petitioner’s removal order and the respondent ha[d] not

shown prejudice” (internal citations and quotations

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omitted)).     The BIA’s December 2009 order affirmed, on the

same grounds, Zheng’s June 2009 removal order; and the

government has not argued or demonstrated that “it was in

any way prejudiced” by the early filing of Zheng’s petition

for review.     See id.    Thus, we retain jurisdiction to

consider it.     See id.

II. Agency’s Denial of Zheng’s Motion to Reopen

    We review the BIA’s denial of Zheng’s motion to reopen

for abuse of discretion.       Kaur v. BIA, 413 F.3d 232, 233 (2d

Cir. 2005) (per curiam).      An alien may only file one motion

to reopen and must do so within 90 days of the final

administrative decision.      8 U.S.C. § 1229a(c)(7); 8 C.F.R.

§ 1003.23(b)(1).     There is no time or numerical limitation,

however, if an alien establishes materially “changed country

conditions arising in the country of nationality.”       8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.23(b)(4)(i).

Here, the BIA did not abuse its discretion in denying

Zheng’s second motion to reopen, which was indisputably

untimely and number-barred.

    As the BIA found, Zheng’s decision to remain in the

United States and father several children after being

ordered excluded was a change in personal circumstances, not


                                  3
a change in country conditions.    See Yuen Jin v. Mukasey,

538 F.3d 143, 155 (2d Cir. 2008); Li Yong Zheng v. U.S.

Dep’t of Justice, 416 F.3d 129, 130 (2d Cir. 2005).       Nor has

Zheng submitted evidence to support his conclusory assertion

that enforcement of China’s population control policy has

become more severe since the time of the IJ’s decision. See,

e.g., Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir.

2006).    Rather, that evidence indicates only that Zheng will

be subject to that policy upon his return to China as a

result of the change in his personal circumstances, not any

change in the policy.

    For the foregoing reasons, the petition for review is

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

removal that the Court previously granted in this petition

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

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

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

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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