    09-3620-ag
    Ni v. Holder
                                                                                            BIA
                                                                                    A070 703 365
                      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 SUMMARYORDER 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 13th day of October, two thousand ten.

    PRESENT:
               GUIDO CALABRESI,
               PETER W. HALL,
               DENNY CHIN,
                 Circuit Judges.
    ______________________________________

    ZHOU SUN NI,
             Petitioner,
                                                                  09-3620-ag
                   v.                                             NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
               Respondent.
    ______________________________________

    FOR PETITIONER:                   Galab B. Dhungana, New York, New York.

    FOR RESPONDENT:                   Tony West, Assistant Attorney General, Civil
                                      Division; Jennifer J. Keeney, Senior Litigation
                                      Counsel, Office of Immigration Litigation; Matthew B.
                                      George, Trial Attorney, Office of Immigration
                                      Litigation, Civil Division, United States Department of
                                      Justice, Washington, D.C.
     UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
DECREED that the petition for review is DENIED.

       Petitioner, Zhou Sun Ni, a native and citizen of the People’s Republic of China,
seeks review of a July 28, 2009, order of the BIA denying his motion to reopen his
removal proceedings. In re Zhou Sun Ni, No. A 070 703 365 (B.I.A. July 28, 2009). We
assume the parties’ familiarity with the underlying facts and procedural history of the
case.

      We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).

        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. § 1003.2(c)(2). Ni’s
motion to reopen – filed over six years after the BIA issued a final order in his case – was
untimely. However, there is no time limitation if the alien establishes materially
“changed circumstances arising in the country of nationality if such evidence . . . was not
available . . . at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

       Although Ni argues that his former wife’s testimony will corroborate his own prior
testimony that he was forcibly sterilized and was not previously available, the BIA
properly noted that such evidence does not establish a change in country conditions, as
required under 8 C.F.R. § 1003.2(c)(3)(ii). Thus, the BIA did not abuse its discretion in
denying Ni’s motion to reopen. See Ali, 448 at 517.

       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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