     14-1044
     Zheng v. Holder
                                                                                 BIA
                                                                         A077 618 736
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
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APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
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 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 3rd day of April, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            GERARD E. LYNCH,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JIAN XIM ZHENG, AKA JIAN XIN ZHENG,
14   AKA JIAN XING ZHENG,
15              Petitioner,
16
17                     v.                                      14-1044
18                                                             NAC
19   ERIC H. HOLDER, JR., UNITED
20   STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                  Gary J. Yerman, New York, New York.
26
27   FOR RESPONDENT:                   Joyce R. Branda, Acting Assistant
28                                     Attorney General; Linda S.
29                                     Wernery, Assistant Director;
 1                                  Theodore C. Hirt, Senior
 2                                  Litigation Counsel, Office of
 3                                  Immigration Litigation, United
 4                                  States Department of Justice,
 5                                  Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioner    Jian   Xim   Zheng,   a   native   and   citizen   of

12   China, seeks review of a March 13, 2014, decision of the BIA

13   denying his second motion to reopen as untimely and number

14   barred.   In re Jian Xim Zheng, No. A077 618 736 (B.I.A. Mar.

15   13, 2014).    We assume the parties’ familiarity with the

16   underlying facts and procedural history of this case.

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

18   abuse of discretion.”      Ali v. Gonzales, 448 F.3d 515, 517

19   (2d Cir. 2006).   When the BIA considers relevant evidence of

20   country conditions in evaluating a motion to reopen based on

21   a change in those conditions, we review the BIA’s factual

22   findings under the substantial evidence standard.            Jian Hui

23   Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

24
                                       2
 1          The   BIA’s     denial      of    Zheng’s     motion   to   reopen    as

 2   untimely and number-barred was not an abuse of discretion.

 3   Zheng’s January 2014 motion was untimely, as he filed it

 4   over twelve years after the final administrative order in

 5   May 2001, and number-barred, as it was his second motion to

 6   reopen.       8    U.S.C.   §§     1229a(c)(7)(A),       (C)(i);    8   C.F.R.

 7   § 1003.2(c)(2).          Although the time and number limitations

 8   may be excused if the motion “is based on changed country

 9   conditions arising in the country of nationality or the

10   country to which removal has been ordered, if such evidence

11   is material and was not available and would not have been

12   discovered        or   presented    at       the   previous   proceeding,”    8

13   U.S.C. § 1229a(c)(7)(C)(ii), the BIA reasonably concluded

14   that    Zheng     failed    to   establish         worsened   conditions    for

15   underground church members in China since the time of his

16   hearing, Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA

17   2007) (explaining that to determine whether conditions have

18   materially changed, agency compares evidence submitted with

19   the motion with conditions that existed at the time of the

20   merits hearing).

21
                                              3
 1          The record evidence does not support Zheng’s assertion

 2   that conditions have worsened since his hearing in 2001.

 3   Reports that predate Zheng’s hearing and recent reports both

 4   show     that     the    Chinese     government         represses   members     of

 5   underground        churches       through       harassment,    detention,      and

 6   arrests.        Given that the country conditions evidence showed

 7   only    a   continuation       of    this       suppression    of   underground

 8   church members, the BIA reasonably found that Zheng had

 9   failed to demonstrate a material change in conditions in

10   China.      See Jian Hui Shao, 546 F.3d at 169; Matter of S-Y-G-

11   , 24 I. & N. Dec. at 253.                 Nothing in the record indicates

12   that the BIA did not consider the record as a whole; rather,

13   it explicitly listed and cited to Zheng’s evidence, but

14   reasonably       concluded,       for     the    reasons    stated,    that    the

15   evidence        did     not   demonstrate         any    material     change    in

16   conditions.        See Xiao Ji Chen v. U.S. Dep’t of Justice, 434

17   F.3d 144, 159-60 n.13 (2d Cir. 2006) (explaining presumption

18   that     agency       considers     all     evidence      “unless   the   record

19   compellingly suggests otherwise”).

20          Because Zheng failed to demonstrate a material change

21   in conditions in China, the BIA did not abuse its discretion
                                                4
 1   in denying his motion to reopen as untimely and number-

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

 3   ruling is dispositive, we do not reach the BIA’s alternative

 4   bases for its denial of reopening.    INS v. Bagamasbad, 429

 5   U.S. 24, 25 (1976).

 6       For the foregoing reasons, the petition for review is

 7   DENIED.   As we have completed our review, the pending motion

 8   for a stay of removal in this petition is DISMISSED as moot.

 9

10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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