         07-3765-ag
         Zheng v. Holder
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                                A073-177-441
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 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 7 th day of December, two thousand nine.
 5
 6       PRESENT:
 7                         ROGER J. MINER,
 8                         JOSÉ A. CABRANES,
 9                         GERARD E. LYNCH,
10                                Circuit Judges
11
12       ______________________________________
13
14       XIANG JIN ZHENG,
15                Petitioner,
16
17                          v.                                  07-3765-ag
18                                                              NAC
19       ERIC H. HOLDER JR., U.S. ATTORNEY
20       GENERAL, * BOARD OF IMMIGRATION APPEALS,
21                  Respondents.
22       ______________________________________
23
24


                      *
                   Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder Jr. is
             automatically substituted for former Attorney General
             Alberto R. Gonzales as a respondent in this case.
 1   FOR PETITIONER:        Henry Zhang, Zhang and Associates,
 2                          P.C., New York, New York.
 3
 4   FOR RESPONDENTS:       Jeffrey S. Bucholtz, Acting
 5                          Assistant Attorney General, Civil
 6                          Division, M. Jocelyn Lopez Wright,
 7                          Assistant Director, Brianne Whelan
 8                          Cohen, Trial Attorney, Office of
 9                          Immigration Litigation, Civil
10                          Division, United States Department
11                          of Justice, Washington, D.C.
12
13        UPON DUE CONSIDERATION of this petition for review of a

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

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

16   is DISMISSED, in part, and DENIED, in part.

17        Xiang Jin Zheng, a native and citizen of the People’s

18   Republic of China, has filed a petition for review of an

19   August 6, 2007 order of the BIA declining to reopen her

20   deportation proceedings.   In re Xiang Jin Zheng, No. A 073

21   177 441 (B.I.A. Aug. 6, 2007).    We assume the parties’

22   familiarity with the underlying facts and procedural history

23   in this case.

24   I.   The BIA’s April 2005 Decision

25        Though she filed a petition for review that was timely

26   as to the BIA’s August 2007 order, Zheng also challenges an

27   April 2005 BIA order, in which it reversed the decision of

28   an immigration judge granting asylum.    The government argues


                                   2
1    that this Court lacks jurisdiction to review the BIA’s April

2    2005 decision.     We agree.   This Court has jurisdiction to

3    consider “final” orders of removal in immigration cases, see

4    8 U.S.C. § 1252(a)(1), and we have held that “a BIA order

5    denying relief from removal and remanding for the sole

6    purpose of considering voluntary departure is a final order

7    of removal that this Court has jurisdiction to review.”         See

8    Alibasic v. Mukasey, 547 F.3d 78, 83-84 (2d Cir. 2008); see

9    also Arias Chupina v. Holder, 570 F.3d 99, 103-05 (2d Cir.

10   2009)(per curiam).     Although Zheng filed a timely petition

11   for review of the BIA’s April 2005 decision, she withdrew it

12   with prejudice.     Because the current petition for review is

13   timely only with respect to the BIA’s August 2007 order, we

14   lack jurisdiction to address the BIA’s April 2005 decision.

15   See Stone v. INS, 514 U.S. 386, 405 (1995) (holding that the

16   Court treats each petition for review as challenging only

17   the BIA decision from which it was timely filed); Samuels v.

18   Northern Telecom, Inc., 942 F.2d 834, 837 (2d Cir. 1991)

19   (“Res judicata may not be avoided on the basis of . . . an

20   attorney’s ill-considered decision to enter into an

21   all-encompassing stipulation of withdrawal with

22   prejudice.”).     Accordingly, Zheng’s petition for review is

23   dismissed to the extent she challenges the BIA’s April 2005

24   order.

                                      3
 1   II.   The BIA’s August 2007 Order

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

 3   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

 4   Cir. 2006)(per curiam).     Where the BIA considers relevant

 5   evidence of country conditions in evaluating a motion to

 6   reopen, we review the BIA’s factual findings under the

 7   substantial evidence standard.       See Jian Hui Shao v.

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

 9         The BIA did not abuse its discretion in denying Zheng’s

10   motion to reopen because she failed to demonstrate her prima

11   facie eligibility for relief.       See INS v. Abudu, 485 U.S.

12   94, 104-05 (1988).     We have previously reviewed the BIA’s

13   consideration of evidence similar to that which Zheng

14   submitted and have found no error in its conclusion that

15   such evidence is insufficient to establish either material

16   changed country conditions or an objectively reasonable fear

17   of persecution.   See Jian Hui Shao, 546 F.3d at 169-72

18   (noting that “[w]e do not ourselves attempt to resolve

19   conflicts in record evidence, a task largely within the

20   discretion of the agency”); see also Wei Guang Wang v. BIA,

21   437 F.3d 270, 275 (2d Cir. 2006) (noting that while the BIA

22   must consider evidence such as “the oft-cited Aird

23   affidavit, which [it] is asked to consider time and again[,]


                                     4
 1   . . . it may do so in summary fashion without a reviewing

 2   court presuming that it has abused its discretion”).

 3   Nothing in the record compels us to conclude, as Zheng

 4   argues, that the BIA ignored the evidence she submitted or

 5   the arguments she made, evidence and arguments the BIA is

 6   asked to consider time and again.   See Xiao Ji Chen v. U.S.

 7   Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006).

 8   Finally, we decline Zheng’s request to remand for the agency

 9   to consider evidence that was not in the administrative

10   record.   See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d

11   Cir. 2007); see also 8 U.S.C. § 1252(b)(4)(A).

12       For the foregoing reasons, the petition for review is

13   DISMISSED, in part, and DENIED, in part.   As we have

14   completed our review, any pending motion for a stay of

15   removal in this petition is DISMISSED as moot.   Any pending

16   request for oral argument in this petition is DENIED in

17   accordance with Federal Rule of Appellate Procedure

18   34(a)(2), and Second Circuit Local Rule 34(b).

19                               FOR THE COURT:
20                               Catherine O’Hagan Wolfe, Clerk
21
22
23                               By:___________________________




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