         11-5399
         Zeng v. Holder
                                                                                       BIA
                                                                               A072 455 590
                           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 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       ZAO YANG ZENG, AKA TERUYA JIKKO,
14                Petitioner,
15
16                        v.                                    11-5399
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:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Ada E. Bosque,
27                                     Senior Litigation Counsel; Mona
28                                     Maria Yousif, 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       Petitioner Zao Yang Zeng, a native and citizen of

 6   China, seeks review of a December 9, 2011, decision of the

 7   BIA denying his motion to reopen his removal proceedings.

 8   In re Zao Yang Zeng, No. A072 455 590 (B.I.A. Dec. 9, 2011).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.

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

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).   An alien seeking to reopen

14   proceedings is required to file a motion to reopen no later

15   than 90 days after the date on which the final

16   administrative decision was rendered.   See 8 U.S.C.

17   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).    There is no

18   dispute that Zeng’s motion to reopen, filed in 2010, was

19   untimely because the BIA issued a final order of removal in

20   2002.   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

21   § 1003.2(c)(2).

22       Zeng contends, however, that he established an

23   exception to the time limitation by demonstrating changed

                                    2
 1   country conditions based on an increase in persecution of

 2   Christian house church members following his merits hearing

 3   in 1999.    See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also

 4   8 C.F.R. § 1003.2(c)(3)(ii).    We conclude that the BIA’s

 5   denial of Zeng’s motion to reopen as untimely was not an

 6   abuse of discretion.

 7       Because Zeng did not support his motion with evidence

 8   of country conditions at the time of his merits hearing, the

 9   BIA did not err by comparing his newly submitted evidence

10   with that submitted in connection with his prior asylum

11   application.    In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.

12   2007) (“In determining whether evidence accompanying a

13   motion to reopen demonstrates a material change in country

14   conditions that would justify reopening, [the BIA] compares

15   the evidence of country conditions submitted with the motion

16   to those that existed at the time of the merits hearing

17   below.”).   As the BIA noted, the evidence of recent

18   conditions indicated a very similar situation for Christians

19   in China to that demonstrated by the evidence of conditions

20   in or before 1999, the time of his merits hearing.

21   Specifically, as the BIA noted, the country reports

22   indicated that the restrictions placed on unauthorized


                                    3
 1   religious groups in 1994 were not appreciably different than

 2   those imposed by the 2005 Regulations on Religious Affairs.

 3   Though Zeng argues that the BIA erred in concluding that the

 4   evidence merely demonstrated continuing negative treatment

 5   of unregistered Christians, the task of resolving conflicts

 6   in the record evidence lies “largely within the discretion

 7   of the agency.”   See Jian Hui Shao v. Mukasey, 546 F.3d 138,

 8   160-61 (2d Cir. 2008).   Where, as here, the agency’s

 9   inference “is tethered to the evidentiary record, we will

10   accord deference to the finding.”   See Siewe v. Gonzales,

11   480 F.3d 160, 168-69 (2d Cir. 2007).   Moreover, while the

12   evidence indicated that some church leaders and pastors had

13   been subjected to lengthy detentions and physical harm,

14   because Zeng alleged only that he would attend services in

15   an underground church, he did not show that the harm

16   suffered by church leaders was material as he would not be

17   similarly situated to the targeted individuals.   See Jian

18   Hui Shao, 546 F.3d at 171.

19       Also, Zeng’s contention that the BIA erred in

20   discounting his evidence of conditions for Chinese

21   Christians outside of his home province of Fujian is

22   misplaced, as Zeng bore the burden of supporting his motion


                                   4
 1   with “material” evidence.   See 8 C.F.R. § 1003.2(c)(1); see

 2   also 8 U.S.C. § 1229a(c)(7)(B); Jian Hui Shao, 546 F.3d at

 3   149 (stating that where enforcement of a policy varies, it

 4   is the applicant’s burden to show a well-founded fear of

 5   persecution in his locality in China); Xiao Ji Chen v. U.S.

 6   Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (noting

 7   that the weight accorded to the applicant’s evidence lies

 8   largely within the discretion of the agency).

 9       As the BIA did not err in concluding that Zeng’s

10   conversion to Christianity in 2010 constituted a change in

11   personal circumstances, rather than a change in

12   circumstances in China that would except his motion from the

13   time limitation, see Yuen Jin v. Mukasey, 538 F.3d 143, 155

14   (2d Cir. 2008); Li Yong Zheng v. U.S. Dep’t of Justice, 416

15   F.3d 129, 130-31 (2d Cir. 2005), and as substantial evidence

16   supports the BIA’s conclusion that Zeng failed to

17   demonstrate a change in the treatment of Christians in

18   China, the BIA did not abuse its discretion by denying the

19   motion as untimely, see 8 U.S.C. § 1229a(c)(7)(C)(ii);

20   8 C.F.R. § 1003.2(c)(3)(ii).   Because the BIA did not abuse

21   its discretion in denying Zeng’s motion as untimely, we do

22   not address his prima facie eligibility for asylum,

23   withholding of removal, and relief under the Convention
                                    5
 1   Against Torture.   See INS v. Bagamasbad, 429 U.S. 24, 25

 2   (1976).

 3       For the foregoing reasons, the petition for review is

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

 5   removal that the Court previously granted in this petition

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

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

 8   oral argument in this petition is DENIED in accordance with

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

10   Circuit Local Rule 34.1(b).

11
12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




                                    6
