No. 08-1248-ag NAC.United States Court of Appeals, Second Circuit.
October 15, 2008.
UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: Oleh R. Tustaniwsky, Hualian LawOffices, New York, New York.
FOR RESPONDENT: Gregory G. Katsas, Assistant
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Attorney General; Anh-Thu P. Mai-Windle, SeniorLitigation Counsel; Thomas B. Fatouros, Trial Attorney, Officeof Immigration Litigation, United States Department of Justice,Washington, D.C.
PRESENT: HON. ROGER J. MINER, HON. SONIA SOTOMAYOR,HON. DEBRA ANN LIVINGSTON, Circuit Judges.
Petitioner Zuo Yu Zhang, a native and citizen of the People’s Republic of China, seeks review of the February 29, 2008 order of the BIA denying his motion to reopen. In re Zuo Yu Zhang, No. A72 379 602 (B.I.A. Feb. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam). Here, we conclude that the BIA did not abuse its discretion in denying Zhang’s second motion to reopen as untimely. An alien seeking to reopen proceedings must file his motion to reopen “no later than 90 days after the date on which the final administrative decision was rendered.”8 C.F.R. § 1003.2(c)(2). There is no dispute that Zhang’s December 2007 motion was untimely as the BIA
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issued a final order of deportation in July 1998. Moreover, the BIA properly found that Zhang’s motion did not qualify for an exception to the time limitation. See 8 C.F.R. § 1003.2(c)(3).
It is well-settled that a change in personal circumstances, such as Zhang’s recent involvement with the China Democracy Party (“CDP”), is not evidence of changed conditions in China See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005). Furthermore, the BIA reasonably found that although Zhang “presented evidence that various individuals have been, and continue to be, arrested for violating laws against criticizing the Chinese government, the evidence d[id] not establish that such laws or the enforcement thereof ha[d] significantly changed since the time of [his] prior hearing in 1998.” In re Zuo Yu Zhang, No. A72 379 602, at 2 (B.I.A. Feb. 29, 2008). Indeed, the 2001 U.S. Department of State Country Report on Human Rights Practices: China (Includes Hong Kong Macau) that Zhang submitted in support of his motion indicate that since 1998, “the [CDP] remained banned, and the government continued to surveil, detain, and imprison
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current and former CDP members.” Moreover, the BIA acknowledged that the evidence demonstrated that the Chinese government had tightened its censorship and control of political dissent on the internet, but reasonably found that this evidence simply “reflect[ed] an effort by authorities to address a new method of transmitting . . . barred material, not any new prohibition on pro-democracy activity.” In re Zuo Yu Zhang, No. A72 379 602, at 2 (B.I.A. Feb. 29, 2008).
Although a reasonable fact-finder could review the evidence of record in this case and reach a conclusion different than that of the BIA, we cannot conclude that on this record the BIA abused its discretion in finding that Zhang failed to demonstrate materially changed country conditions sufficient to excuse the untimeliness of his motion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir. 2001). Because the BIA reasonably denied Zhang’s motion to reopen as untimely, contrary to his argument, it was not required to consider his eligibility for CAT relief.
Finally, as Zhang is under a final order of deportation and did not file a timely motion to reopen or demonstrate
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changed country conditions excusing the untimeliness of his motion, the BIA did not err in concluding that he was not eligible to file a successive asylum application based on his changed personal circumstances. See Yuen Jin v. Mukasey, 538 F.3d 143, 152 (2d Cir. 2008).
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is DISMISSED as moot.
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