         11-1017-ag
         Zheng v. Holder
                                                                                       BIA
                                                                                 Videla, I.J.
                                                                               A073 185 600
                             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 5th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _____________________________________
12
13       En Zheng,
14                         Petitioner,
15
16                         v.                                   11-1017-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Gary J. Yerman, New York, NY.
24
25       FOR RESPONDENT:                  Tony West, Assistant Attorney
26                                        General; Anthony C. Payne, Senior
27                                        Litigation Counsel; Stuart S.
28                                        Nickum, Trial Attorney, Office of
29                                        Immigration Litigation, United
30                                        States Department of Justice,
31                                        Washington, D.C.
 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       En Zheng, a native and citizen of China, seeks review

 6   of a February 14, 2011 order of the BIA, affirming the June

 7   22, 2009 decision of Immigration Judge (“IJ”) Gabriel C.

 8   Videla, which denied his motion to reopen.     In re En Zheng,

 9   No. A073 185 600 (BIA Feb. 14, 2011), aff’g No. A073 185 600

10   (Immigr. Ct. N.Y. City June 22, 2009).    We assume the

11   parties’ familiarity with the underlying facts and

12   procedural history of the case.

13       We review the denial of a motion to reopen for abuse of

14   discretion.     See Debeatham v. Holder, 602 F.3d 481, 484 (2d

15   Cir. 2010) (per curiam).    Under the circumstances of this

16   case, we review the decision of the IJ as supplemented by

17   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

18   Cir. 2005).    When the agency considers relevant evidence of

19   country conditions in evaluating a motion to reopen, we

20   review factual findings under the substantial evidence

21   standard.1    See 8 U.S.C. § 1252(b)(4)(B) (“[T]he

            1
              Prior to the REAL ID Act of 2005, this case would
       have been governed entirely by the transitional rules of
                                     2
 1   administrative findings of fact are conclusive unless any

 2   reasonable adjudicator would be compelled to conclude to the

 3   contrary.”); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

 4   Cir. 2008).

 5       An alien may move to reopen his case, but must

 6   generally do so within 90 days of the entry of the final

 7   order of deportation in the underlying proceeding.   8 CFR

 8   § 1003.23(b)(1).   A motion that does not comply with this

 9   time limitation can be brought if the alien establishes both

10   “changed country conditions arising in the country of

11   nationality or the country to which [deportation] has been

12   ordered,” id. § 1003.23(b)(4)(i), and prima facie

13   eligibility for relief, see Poradisova v. Gonzales, 420 F.3d



       the Illegal Immigration Reform and Immigration
       Responsibility Act (“IIRIRA”) because Zheng was in
       deportation proceedings before April 1, 1997, and the
       final order of deportation he is challenging was entered
       more than 30 days after September 30, 1996. See IIRIRA
       § 309(c); Mariuta v. Gonzales, 411 F.3d 361, 363 n.3 (2d
       Cir. 2005). However, section 106(d) of the REAL ID Act,
       Pub. L. No. 109-13, requires that we treat the case as if
       it had been filed under the IIRIRA’s permanent rules (as
       amended by the REAL ID Act) codified in 8 U.S.C. § 1252.
       See Jun Min Zhang v. Gonzales, 457 F.3d 172, 174–75 (2d
       Cir. 2006). In any event, the standard of review of
       factual findings is the same under both the permanent and
       transitional rules. See Zhou Yun Zhang v. INS, 386 F.3d
       66, 73 n.7 (2d Cir. 2004), overruled in part on other
       grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494
       F.3d 296, 305 (2d Cir. 2007) (en banc).
                                   3
 1   70, 78 (2d Cir. 2005).     Zheng’s 2009 motion to reopen was

 2   untimely because the IJ’s deportation order in the

 3   underlying proceeding was entered in 1997.     He was therefore

 4   required to establish a change in country conditions.

 5       The IJ, having found that Zheng failed to establish

 6   changed country conditions, acted within his discretion in

 7   denying Zheng’s motion on the ground that a change in

 8   personal circumstances in the United States (i.e., his

 9   participation in Christian church services since 2008) was

10   insufficient to excuse his untimely motion.     See Wei Guang

11   Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006); cf. Li Yong

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

13   Cir. 2005) (per curiam).

14        Zheng contends that the agency mischaracterized his

15   motion as based on changed personal circumstances rather

16   than on changed country conditions.     However, the IJ

17   expressly found that the evidence he submitted was

18   insufficient to establish changed country conditions in

19   China.   Likewise, the BIA concluded that Zheng had failed to

20   establish changed country conditions with respect to China’s

21   treatment of Christians and underground churches.

22



                                     4
 1       The agency’s finding is supported by substantial

 2   evidence.    Although some evidence indicates that the Chinese

 3   government may have intensified its repression of

 4   unregistered religious groups in certain regions in the

 5   period leading up to and during the 2008 Summer Olympics,

 6   that intensification was not material to Zheng’s motion,

 7   which was filed in April 2009, well after the Olympics had

 8   concluded.    See Jian Hui Shao, 546 F.3d at 169.

 9       To the extent that Zheng urges the Court to take

10   judicial notice of an October 2009 Congressional-Executive

11   Commission Report (which is not part of the administrative

12   record and pre-dates the BIA’s decision), we decline the

13   invitation as our review is limited to the agency record,

14   see 8 U.S.C. § 1252(b)(4)(A), and remand for the agency’s

15   consideration would be inappropriate, see Xiao Xing Ni v.

16   Gonzales, 494 F.3d 260, 269–72 (2d Cir. 2007).

17       In any event, a report's statement that oppression of

18   religious minorities intensified during a particular period

19   does not, standing alone, undermine the agency’s finding.

20   The same evidence Zheng relies on also contradicts his

21   argument that conditions in China have materially worsened

22   since his last hearing, as it showed a continuation of

23   China’s policy of controlling religious activity, and that,
                                    5
 1   in some regions, unregistered Christian groups have operated

 2   openly, with full knowledge of local officials.   Evidence

 3   pertaining to the country conditions in China at the time of

 4   Zheng’s last hearing (i.e., a 1995 U.S. State Department

 5   report) also supports the IJ’s finding that China's current

 6   policy is a continuation of, rather than a material change

 7   in, its treatment of religious activity and, specifically,

 8   unregistered churches.   Consequently, we do not disturb the

 9   agency’s finding.   See Jian Hui Shao, 546 F.3d at 171; Siewe

10   v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007).

11       Zheng argues that his father’s affidavit regarding the

12   arrest of members of an underground church (including a

13   neighbor) “establishes that the recent campaign of religious

14   persecution has spread to [his] region of China,” i.e., the

15   Fuzhou area in the Fujian province.   However, this does not

16   represent a material change.   As the 1995 State Department

17   report found: “A growing number of [asylum] cases from

18   China, especially from the Fuzhou area in Fujian province,

19   claim persecution on account of religion.   Most asylum

20   applications on account of religion are by claimed members

21   of the unsanctioned Christian churches in China, both

22   Catholic and Protestant.”   Moreover, the BIA acted within

23   its discretion in giving little weight to his father’s
                                    6
 1   affidavit as hearsay from an interested party.   Cf. Xiao Ji

 2   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

 3   2006).

 4       As substantial evidence supports the agency’s finding

 5   that Zheng failed to establish changed country conditions to

 6   excuse his untimely motion to reopen, we need not address

 7   whether the agency improperly discounted evidence of his

 8   Christian practice, or whether he is prima facie eligible

 9   for relief.

10       For the foregoing reasons, the petition for review is

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

12   removal that the Court previously granted in this petition

13   is VACATED, and Zheng’s pending motion for a stay of removal

14   in this petition is DISMISSED as moot.   Any pending request

15   for oral argument in this petition is DENIED in accordance

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

17   Second Circuit Local Rule 34.1(b).

18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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