Shou Zheng v. Holder , 381 F. App'x 107 ( 2010 )

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
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