         07-5454-ag
         Zeng v. Holder
                                                                                        BIA
                                                                                A029 793 777
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 19 th day of November, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                       Chief Judge,
 9                JON. O. NEWMAN,
10                PIERRE N. LEVAL,
11                       Circuit Judges.
12       _________________________________________
13
14       SHI MING ZENG,
15                Petitioner,
16
17                        v.                                    07-5454-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., * UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23


                  *
                Pursuant to Federal Rule of Appellate Procedure
         43(c)(2), Attorney General Eric H. Holder, Jr. is
         automatically substituted for former Attorney General
         Michael B. Mukasey as respondent in this case.
 1   FOR PETITIONER:           Yuming Wang, Wynnewood,
 2                             Pennsylvania.
 3
 4   FOR RESPONDENT:           Gregory G. Katsas, Assistant
 5                             Attorney General; M. Jocelyn Lopez
 6                             Wright, Assistant Director; Yamileth
 7                             G. Handuber, Trial Attorney; Office
 8                             of Immigration Litigation, Civil
 9                             Division, United States Department
10                             of Justice, Washington, D.C.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

14   ORDERED, ADJUDGED, AND DECREED, that the petition for review

15   is DENIED.

16       Petitioner Shi Ming Zeng, a native and citizen of the

17   People’s Republic of China, seeks review of a November 8,

18   2007 order of the BIA denying his motion to reopen.     In re

19   Shi Ming Zeng, No. A029 793 777 (B.I.A. Nov. 8, 2007).      We

20   assume the parties’ familiarity with the underlying facts

21   and procedural history in this case.

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

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

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

25   country conditions in evaluating a motion to reopen, we

26   review the BIA’s factual findings under the substantial

27   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

28   138, 169 (2d Cir. 2008).

29       The BIA did not err in denying Zeng’s untimely motion

                                     2
1    to reopen.   See 8 U.S.C. § 1229a(c)(7)(C); see also 8 C.F.R.

2    § 1003.2(c)(2).   Zeng argues that the BIA erred in

3    concluding that he failed to produce evidence demonstrating

4    either material changed country conditions sufficient to

5    excuse the untimely filing of his motion to reopen or his

6    prima facie eligibility for relief from deportation.

7    However, these arguments fail because we have previously

8    reviewed the BIA’s consideration of evidence similar to that

9    which Zeng submitted and have found no error in its

10   conclusion that such evidence is insufficient to establish

11   either material changed country conditions or a reasonable

12   possibility of persecution.   See Jian Hui Shao, 546 F.3d at

13   169-72 (noting that “[w]e do not ourselves attempt to

14   resolve conflicts in record evidence, a task largely within

15   the discretion of the agency”); see also Wei Guang Wang v.

16   BIA, 437 F.3d 270, 275 (2d Cir. 2006) (noting that while the

17   BIA must consider evidence such as “the oft-cited Aird

18   affidavit, which [it] is asked to consider time and again[,]

19   . . . it may do so in summary fashion without a reviewing

20   court presuming that it has abused its discretion”).

21   Moreover, contrary to Zeng’s argument, the BIA reasonably

22   found that his particularized evidence was not material

23   because it did not reference the forced sterilizations of


                                   3
1    similarly situated individuals.     See Jian Hui Shao, 546 F.3d

2    at 160-61.   Even if, as Petitioner contends, the BIA was

3    mistaken in thinking that he had failed to submit the

4    original of the document from the Tinjiang Town Government,

5    any such error is harmless because the BIA reasonably

6    stated, “Even if we consider arguendo this document, he has

7    not demonstrated that the policy expressed within

8    constituted evidence of changed country conditions in the

9    absence of any evidence that the prior version of the law

10   was different, or differently enforced, in some relevant and

11   material way.”   (BIA opinion at 3)

12       We lack jurisdiction to consider any argument that the

13   BIA abused its discretion in declining to reopen Zeng’s

14   proceedings sua sponte.     See Ali, 448 F.3d at 518.

15       For the foregoing reasons, the petition for review is

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

17   removal that the Court previously granted in this petition

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

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

20   oral argument in this petition is DENIED in accordance with

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

22   Circuit Local Rule 34(b).

23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
26                                 By:___________________________


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