         11-266-ag
         Zheng v. Holder
                                                                                         BIA
                                                                                 A073 648 002
                            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 29th day of May, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. McLAUGHLIN,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _________________________________________
12
13       BING DUAN ZHENG
14                Petitioner,
15
16                         v.                                      11-266-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, New York.
24
25       FOR RESPONDENT:                Tony West, Assistant Attorney
26                                      General; Blair T. O’Connor, Senior
27                                      Assistant Director; Kathryn L.
28                                      Moore, 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       Petitioner Bing Duan Zheng, a native and citizen of the

 6   People’s Republic of China, seeks review of a January 11,

 7   2011, order of the BIA denying his motion to reopen.      In re

 8   Bing Duan Zheng, No. A073 648 002 (B.I.A. Jan. 11, 2011).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history in this case.     We have reviewed the

11   BIA’s denial of Zheng’s time- and number-barred motion for

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

13   (2d Cir. 2006).

14       An individual ordinarily may file only one motion to

15   reopen and must do so within 90 days of the final

16   administrative decision.   8 U.S.C. § 1229a(c)(7)(A), (C);

17   8 C.F.R. § 1003.2(c)(2).   However, the time and number

18   limitations do not apply to a motion to reopen if it is

19   “based on changed country conditions arising in the country

20   of nationality . . . if such evidence is material and was

21   not available and would not have been discovered or

22   presented at the previous proceeding.”

23   8 U.S.C. § 1229a(c)(7)(C)(ii).    Zheng does not dispute that

24   his motion was time- and number-barred, but argues that he

                                   2
 1   has demonstrated materially changed country conditions to

 2   excuse the time and number limitations.   However, the BIA

 3   reasonably denied Zheng’s motion to reopen, concluding that

 4   he had demonstrated a “continuation” rather than a “change

 5   in the suppression of religious activity” by the Chinese

 6   government.

 7       Zheng’s argument that the BIA erred in relying on

 8   background evidence that pre-dates his asylum hearing is

 9   unavailing.   See 8 C.F.R § 1003.2(c)(1); see also Norani v.

10   Gonzales, 451 F.3d 292, 294 & n.3 (2d Cir. 2006).

11       Zheng’s argument that the BIA erred in citing the

12   statistic that 90 million Christians worship in China, and

13   that it did not consider favorable background materials in

14   finding he had established a “continuation” rather than a

15   “change” in country conditions is further unavailing.   See

16   Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008).

17   The evidence supports the BIA’s conclusion that religious

18   oppression in China is a continuation of existing policy, as

19   the 2009 Department of State International Religious Freedom

20   Report (“2009 DOS Report”) states that government “officials

21   continued to scrutinize, and in some cases harass,

22   registered and unregistered religious and spiritual groups”

23   (emphasis added) and the 2009 Congressional-Executive

24   Commission on China (“2009 Congressional Report”) describes

                                   3
 1   the Chinese government’s “continued control [of] religious

 2   practices and repress[ion] of religious activity outside

 3   state-approved parameters” (emphasis added).    Thus, while

 4   the record does demonstrate some increase in anti-religious

 5   activities in the run up to and in the wake of the 2008

 6   Beijing Olympics, the BIA’s conclusion is supported by

 7   substantial evidence and entitled to deference.

 8       Finally, we need not reach Zheng’s argument that he

 9   established his prima facie eligibility for relief, both

10   because the BIA’s changed country conditions finding was

11   reasonable and because the BIA declined to reach this issue.

12      For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22




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