     13-1817
     Zheng v. Lynch
                                                                                       BIA
                                                                               A098 255 772
                           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   25th day of March, two thousand sixteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            DENNY CHIN,
10                 Circuit Judges.
11   _____________________________________
12
13   ER BIAO ZHENG, AKA TAKAHILO HANYU,
14             Petitioner,
15
16                    v.                                             13-1817
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,*
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                    Gary J. Yerman, Yerman & Associates,
24                                      LLC, New York, New York.
25
26   FOR RESPONDENT:                    Stuart F. Delery, Assistant Attorney
27                                      General; Jesi J. Carlson, Senior
28                                      Litigation    Counsel;   Joseph   A.

     * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Loretta E. Lynch is substituted for Eric H. Holder, Jr. as
     Respondent.
1                                 O’Connell, Attorney, Office of
2                                 Immigration   Litigation,   United
3                                 States   Department  of   Justice,
4                                 Washington, D.C.

5        UPON DUE CONSIDERATION of this petition for review of a

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

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Er Biao Zheng, a native and citizen of the

10   People’s Republic of China, seeks review of an April 16, 2013,

11   decision of the BIA denying his motion to reopen.   In re Er Biao

12   Zheng, No. A098 255 772 (B.I.A. Apr. 16, 2013).     We assume the

13   parties’ familiarity with the underlying facts and procedural

14   history in this case.

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

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

17   2006).    It is undisputed that Zheng’s motion was untimely

18   because it was filed over four years after the agency’s final

19   order of removal.    See 8 U.S.C. § 1229a(c)(7)(C)(i).   However,

20   the time limit can be waived if the motion is “based on changed

21   country conditions arising in the country of nationality or the




                                      2
1    country   to   which   removal   has   been   ordered.”      8   U.S.C.

2    § 1229a(c)(7)(C)(ii).

3        We find no error in the BIA’s determination that Zheng

4    failed to demonstrate a material change in conditions in China.

5    As an initial matter, Zheng’s argument that the BIA failed to

6    consider the country reports in their entirety is misplaced.

7    Contrary to Zheng’s assertion, the BIA acknowledged that church

8    members, and not just leaders, have been harassed by Chinese

9    officials.

10       However, that finding is not determinative.            Zheng fails

11   to identify a change in conditions between the time of his

12   hearing and the filing of his motion to reopen, which is the

13   showing required to excuse the untimely filing.             See In re

14   S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007).           Although the

15   BIA did not parse the earlier reports, it did cite S-Y-G-.

16   Accordingly, and because the country conditions evidence

17   supports the BIA’s decision, we presume that the BIA considered

18   the evidence.    Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

19   315, 336 n.17 (2d Cir. 2006) (presuming that the agency “has

20   taken into account all of the evidence before [it], unless the

21   record compellingly suggests otherwise”).
                                       3
1        A comparison of the 2005 and 2010 country reports supports

2    the BIA’s determination that there was no material change in

3    conditions in China.       Jian Hui Shao v. Mukasey, 546 F.3d 138,

4    157 (2d Cir. 2008) (“[W]e will not disturb a factual finding

5    if it is supported by reasonable, substantial, and probative

6    evidence in the record when considered as a whole” (internal

7    quotation marks omitted)).        Reports from both years show that

8    church leaders and members were subjected to harassment,

9    arrest, and detention as a result of their religious activities.

10   Thus, rather than showing a material change in conditions, these

11   reports show a continuation of the same conditions.               While

12   Zheng’s   brief    cites   the   2012   U.S.   Commission   Report   on

13   International Religious Freedom for the proposition that

14   restrictions      placed   on    Protestant    house   churches   were

15   “systematic and intense,” the same report also states that

16   religious communities continue to grow and hundreds of millions

17   of believers practice their faiths openly in China.          Thus, the

18   report does not undermine the BIA’s conclusion.

19       Because Zheng’s failure to establish a material change in

20   country conditions is dispositive, we do not reach his arguments

21   regarding his prima facie eligibility for asylum.           See INS v.
                                         4
1    Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts

2    and agencies are not required to make findings on issues the

3    decision of which is unnecessary to the results they reach.”).

4        For the foregoing reasons, the petition for review is

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

6    that the Court previously granted in this petition is VACATED,

7    and any pending motion for a stay of removal of this petition

8    is DENIED as moot.    Any pending request for oral argument in

9    this petition is DENIED in accordance with Federal Rule of

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

11   34.1(b).

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




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