     14-3132
     Weng v. Lynch
                                                                                       BIA
                                                                               A073 574 467

                          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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   28th day of April, two thousand sixteen.
 5
 6   PRESENT:
 7            GUIDO CALABRESI,
 8            DEBRA ANN LIVINGSTON,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ZHEN YIN WENG,
14            Petitioner,
15
16                   v.                                              14-3132
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Theodore N. Cox, New York, New York.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Stephen
27                                       J. Flynn, Assistant Director; Ann M.
28                                       Welhaf, 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 is

4    DENIED.

5          Petitioner Zhen Yin Weng, a native and citizen of the

6    People’s Republic of China, seeks review of an August 5, 2014,

7    decision of the BIA, denying his motion to reopen.                In re Zhen

8    Yin Weng, No. A073 574 467 (B.I.A. Aug. 5, 2014).                 We assume

9    the   parties’    familiarity     with      the   underlying      facts   and

10   procedural history in this case.

11         The applicable standards of review are well established.

12   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

13   2008).    It is undisputed that Weng’s motion to reopen was

14   untimely filed more than fifteen years after his deportation

15   order    became     final.      See    8 U.S.C.    § 1229a(c)(7)(C)(i);

16   8 C.F.R. § 1003.2(c)(2).          However, the time limitation for

17   filing a motion to reopen does not apply if the motion “is based

18   on changed country conditions arising in the country of

19   nationality or the country to which removal has been ordered,

20   if such evidence is material and was not available and would

21   not   have   been    discovered       or   presented   at   the    previous

22   proceeding.”         8 U.S.C.     § 1229a(c)(7)(C)(ii);           see     also

23   8 C.F.R. § 1003.2(c)(3)(ii).

                                            2
1          The BIA did not err in finding that Weng failed to

2    demonstrate a material change in the enforcement of the family

3    planning policy in his home province of Fujian since his 1997

4    hearing before the IJ.   See In re S-Y-G-, 24 I. & N. Dec. 247,

5    253   (B.I.A.    2007)   (“In   determining   whether   evidence

6    accompanying a motion to reopen demonstrates a material change

7    in country conditions that would justify reopening, [the BIA]

8    compare[s] the evidence of country conditions submitted with

9    the motion to those that existed at the time of the merits

10   hearing below.”); see also Jian Hui Shao, 546 F.3d at 159-66

11   (noting that country conditions evidence from 1998 to 2007

12   indicated that enforcement of the family planning policy was

13   generally lax in Fujian Province with the occasional reports

14   of the use of force).    Weng’s evidence (including the Annual

15   Reports of the Congressional-Executive Commission on China and

16   local family planning directives) establishes that, in Fujian

17   Province, economic rewards and penalties continue to be the

18   primary means of ensuring compliance with the mandatory fines,

19   birth control measures, abortions, and sterilizations required

20   by the policy.     In light of this evidence, a few isolated

21   reports of persecutory enforcement did not compel the BIA to

22   find a material change in country conditions.      See Jian Hui

23   Shao, 546 F.3d at 155-56, 160, 172-73.

                                     3
1        Accordingly, because the agency reasonably found that Weng

2    did not demonstrate a material change in conditions in China,

3    it did not abuse its discretion in denying his motion to reopen

4    as untimely.   See 8 U.S.C. § 1229a(c)(7)(C); see also In re

5    S-Y-G-, 24 I. & N. Dec. at 253, 257.

6        For the foregoing reasons, the petition for review is

7    DENIED.    As we have completed our review, Weng’s pending

8    motions for a stay of removal and to compel his return are

9    DISMISSED as moot.   Any pending request for oral argument in

10   this petition is DENIED in accordance with Federal Rule of

11   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

12   34.1(b).

13                                FOR THE COURT:
14                                Catherine O=Hagan Wolfe, Clerk




                                   4
