         12-5048
         Zhang v. Holder
                                                                                            BIA
                                                                       A079 316 243/244/245/246
                                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 28th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       XIN NENG ZHANG, ET AL.,
14                Petitioners,
15
16                         v.                                   12-5048
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONERS:                Scott E. Bratton, Margaret Wong &
24                                       Associates Co., LPA, Cleveland,
25                                       Ohio.
26
27       FOR RESPONDENT:                 Stuart F. Delery, Assistant Attorney
28                                       General; Melissa Neiman-Kelting,
29                                       Senior Litigation Counsel; Jessica
30                                       A. Dawgert, Trial Attorney, Office
31                                       of Immigration Litigation, Civil
32                                       Division, United States Department
33                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   review is DENIED.

 5       Petitioners Xin Neng Zhang, Chun Yin Pat, Chung Yat

 6   Cheung, and Wai Ho Zhang, natives and citizens of China,

 7   seek review of a November 21, 2012, decision of the BIA

 8   denying their motion to reopen.    In re Xin Neng Zhang, et

 9   al., No. A079 316 243/244/245/246 (B.I.A. Nov. 21, 2012).

10   We assume the parties’ familiarity with the underlying facts

11   and procedural history of this case.

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

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

14   admonition that such motions are “disfavored.”    Ali v.

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

16   Doherty, 502 U.S. 314, 322-23 (1992)).    We review the BIA’s

17   factual findings regarding country conditions under the

18   substantial evidence standard.    See Jian Hui Shao v.

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

20       The BIA did not abuse its discretion in denying Zhang’s

21   motion to reopen as untimely and number barred as it was his

22   second motion and was filed more than six years after his


                                  2
 1   final order of removal.   See 8 U.S.C. § 1229a(c)(7)(A),

 2   (C)(I); 8 C.F.R. § 1003.2(c)(2).     Although there are no time

 3   or numerical limitations for filing a motion to reopen

 4   “based on changed country conditions arising in the country

 5   of nationality or the country to which removal has been

 6   ordered, if such evidence is material and was not available

 7   and would not have been discovered or presented at the

 8   previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

 9   also 8 C.F.R. § 1003.2(c)(3)(ii), Zhang has not established

10   any error in the BIA’s conclusion that there was no material

11   change in country conditions here.

12       First, Zhang’s apparent assistance to the United States

13   government is a change in personal circumstances that does

14   not excuse the time and number limitations.     See Li Yong

15   Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d

16   Cir. 2005); Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d

17   Cir. 2006); see also Ali v. Mukasey, 524 F.3d 145, 150 (2d

18   Cir. 2008) (holding that exercise of "prosecutorial

19   discretion" was not subject to judicial review, absent a

20   constitutional claim or question of law); Young Dong Kim v.

21   Holder, No. 12-1626, 2013 WL 6576520 (7th Cir. Dec. 16,

22   2013).   Second, as the BIA reasonably determined, Zhang

23   failed to establish a material change in country conditions,

                                   3
 1   since the time of his hearing.     Indeed, State Department

 2   reports in the record for 2000 (submitted with Zhang's

 3   original application) and 2010 (submitted with his motion to

 4   reopen) showed that country conditions had not materially

 5   changed.    See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253

 6   (BIA 2007)(“In determining whether evidence accompanying a

 7   motion to reopen demonstrates a material change in country

 8   conditions that would justify reopening, [the BIA]

 9   compare[s] the evidence of country conditions submitted with

10   the motion to those that existed at the time of the merits

11   hearing below.”); see also Norani v. Gonzales, 451 F.3d 292,

12   294 (2d Cir. 2006) (per curiam) (considering whether

13   evidence in support of reopening demonstrated a change since

14   the hearing below).

15       Accordingly, the BIA did not abuse its discretion in

16   denying Zhang’s motion to reopen as untimely and number

17   barred.    See 8 U.S.C. § 1229a(c)(7)(A), (c).   Because the

18   BIA’s denial as untimely and number barred is dispositive,

19   we do not reach Zhang’s arguments regarding his prima facie

20   eligibility for relief.

21

22



                                    4
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6
7
8
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