Yu Yan Zheng v. Holder , 398 F. App'x 681 ( 2010 )

09-5019-ag
Zheng v. Holder
BIA
A078 719 821
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 28th day of October, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROBERT A. KATZMANN,
REENA RAGGI,
Circuit Judges.
_____________________________________
YU YAN ZHENG,
Petitioner,
v. 09-5019-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, New York, New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; W. Daniel Shieh,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Yu Yan Zheng, a native and citizen of the People’s
Republic of China, seeks review of a November 20, 2009 order
of the BIA denying her motion to reopen. In re Yu Yan
Zheng, No. A078 719 821 (B.I.A. Nov. 20, 2009). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful of the Supreme Court’s
admonition that such motions are disfavored. See Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
Doherty, 502 U.S. 314, 322-23 (1992)). There is no dispute
that Zheng’s March 2009 motion to reopen was untimely and
numerically barred because the BIA entered a final
administrative order dismissing her appeal in December 2003
and Zheng filed her first motion to reopen in November 2006.
See 8 C.F.R. § 1003.2(c)(2). However, the time and number
limitations do not apply to a motion to reopen “based on
changed circumstances arising in the country of nationality
or in the country to which deportation has been ordered, if
such evidence is material and was not available and could
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not have been discovered or presented at the previous
hearing.” Id. § 1003.2(c)(3)(ii). Zheng claims that her
motion falls under this exception.
The BIA did not abuse its discretion in denying Zheng’s
motion to reopen. Contrary to Zheng’s argument, there is no
indication that the BIA ignored any material evidence she
submitted. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
(2d Cir. 2008) (recognizing that BIA need not “expressly
parse or refute on the record each individual argument or
piece of evidence offered by the petitioner” (internal
quotation marks omitted)); see also Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 337 n.17 (2d Cir. 2006)
(presuming that agency “has taken into account all of the
evidence before [it], unless the record compellingly
suggests otherwise”). Rather, the record supports the BIA’s
reasonable determination that, although China has engaged in
discrimination and abuse against Christians, Zheng failed to
establish that conditions in China had fundamentally changed
such that reopening was warranted. See Siewe v. Gonzales,
480 F.3d 160, 167 (2d Cir. 2007) (“Where there are two
permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” (internal
quotation marks omitted)); Xiao Ji Chen, 471 F.3d at 342(holding that weight afforded to applicant’s evidence in
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immigration proceedings lies largely within IJ’s
discretion).
Because the BIA did not abuse its discretion in finding
that Zheng failed to establish changed country conditions
sufficient to warrant reopening, we need not reach the BIA’s
finding that she failed to establish her prima facie
eligibility for relief.
To the extent Zheng asks the Court to take judicial
notice of the 2009 Report of the Congressional-Executive
Commission on China, dated prior to the BIA’s denial of her
motion, we decline the invitation as our review is limited
to the record before the agency. 8 U.S.C. § 1252(b)(4)(A).
Moreover, this court has held that remand for agency
consideration of documents outside the administrative record
is inappropriate. See Xiao Xing Ni v. Gonzales, 494 F.3d
260, 269-70 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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