         09-2452-ag
         Zheng v. Holder
                                                                                       BIA
                                                                               A078 287 082

                            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 22 nd day of June, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                        Circuit Judges.
11       _________________________________________
12
13       SHOU ZHENG, aka SHOU FENG ZHENG,
14                Petitioner,
15
16                         v.                                   09-2452-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:               Kevin Long, Monterey Park,
24                                     California.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Yamileth G.
29                                     Handuber, Trial Attorney, Civil
30                                     Division, Office of Immigration
31                                     Litigation, United States Department
32                                     of Justice, 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 Shou Zheng, a native and citizen of the

6    People’s Republic of China, seeks review of the May 14,

7    2009, order of the BIA, which denied her motion to reopen

8    and reconsider.     In re Shou Zheng, No. A078 287 082 (B.I.A.

9    May 14, 2009).     We assume the parties’ familiarity with the

10   underlying facts and procedural history of the case.

11       In denying Zheng’s motion, the BIA construed it as both

12   a motion to reopen and reconsider.     The substantive

13   standards for each motion are distinct.     Whereas a motion to

14   reconsider must specify errors of fact or law in the BIA’s

15   prior decision, see 8 C.F.R. § 1003.2(b)(1), an untimely

16   motion to reopen must establish changed country conditions,

17   8 C.F.R. § 1003.2(c)(3)(ii); see Jian Hui Shao v. Mukasey,

18   546 F.3d 138, 169 (2d Cir. 2008).     Here, as the Government

19   argues, Zheng fails to challenge the BIA’s denial of her

20   motion to reconsider.     Accordingly, we deem any such

21   argument waived.     See Yueqing Zhang v. Gonzales, 426 F.3d

22   540, 541 n.1, 545 n.7 (2d Cir. 2005).



                                     2
1        We further find that the BIA did not abuse its

2    discretion in denying Zheng’s motion to reopen.     Zheng does

3    not dispute that her motion to reopen was untimely.     Rather,

4    she argues that the BIA erred by calling her credibility

5    into question in denying that motion.     However, the BIA

6    reasonably found that even assuming Zheng had shown a change

7    in country conditions regarding religious persecution in

8    China, she failed to demonstrate that the change was

9    material to her claim.   See    8 C.F.R. § 1003.2(c)(3)(ii).

10   The BIA explained that, although Zheng stated that the

11   Chinese government intercepted a Bible which she mailed to

12   her mother, her mother’s affidavit did not mention this

13   incident, and the postal receipt Zheng submitted “does not

14   show what was mailed, who mailed it, or who was the intended

15   recipient.”   In other words, the BIA did not believe that

16   Zheng, who claimed in her underlying proceedings that she

17   feared persecution under China’s family planning policy, had

18   actually become a member of a Christian sect and feared

19   persecution on that basis.     That finding was particularly

20   appropriate given the adverse credibility finding the IJ had

21   made in the underlying proceeding.     See Qin Wen Zheng v.

22   Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (relying on the



                                     3
1    doctrine falsus in uno, falsus in omnibus to conclude that

2    the agency may decline to credit documentary evidence

3    submitted with a motion to reopen by an alien who was found

4    not credible in the underlying proceeding) (citing Siewe v.

5    Gonzales, 480 F.3d 160, 170 (2d Cir. 2007)).

6        Despite Zheng’s argument, the BIA also did not err in

7    relying on the lack of corroboration for her claim that the

8    Chinese government was aware of her activities with the

9    Shouters, noting that she failed to present “any document

10   issued by the authorities to her.”    See Hongsheng Leng v.

11   Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).     This Court has

12   observed that asylum applicants may not always be expected

13   to produce evidence from their alleged persecutors.      See Qin

14   Wen Zheng, 500 F.3d at 147.    Here, however, given the BIA’s

15   reasonable suspicion regarding Zheng’s credibility, it was

16   entitled to decline to reopen her proceedings in the absence

17   of probative evidence.   Id.

18       Additionally, contrary to Zheng’s assertion, the BIA

19   acted within its discretion in finding implausible her

20   statement that she did not become aware of the Chinese

21   government’s persecution of the Shouters until after she was

22   told about it by her mother in April 2008.     The BIA

23   explained that it was inherently unbelievable that she would
                                    4
1    not be aware of such persecution earlier, because she did

2    not leave China until 2000 and the Department of State

3    Report stated that “beginning in the 1980‘s, the Chinese

4    government banned groups which it determined to be cults,

5    including the ‘Shouters’ and several other Protestant

6    Christian groups.”   See Ying Li v. BCIS, 529 F.3d 79, 82 (2d

7    Cir. 2008).

8        Ultimately, because the BIA did not err in finding that

9    Zheng failed to demonstrate a material change in country

10   conditions, see Jian Hui Shao, 546 F.3d at 169-72, it did

11   not abuse its discretion in denying her motion to reopen.

12   See 8 C.F.R. § 1003.2(c)(1).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in these petitions is DENIED in accordance

19   with Federal Rule of Appellate Procedure 34(a)(2), and

20   Second Circuit Local Rule 34.1(b).

21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23
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