No. 08-5809-ag.United States Court of Appeals, Second Circuit.
June 29, 2010.
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.
Michael Brown, New York, NY, for Petitioner.
Michael F. Hertz, Acting Assistant Attorney General; Aviva L. Poczter, Senior Litigation Counsel; Margaret A. O’Donnell, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: PETER W. HALL, GERARD E. LYNCH, and DENNY CHIN, Circuit Judges.
Yan Hui Zheng, a native and citizen of the People’s Republic of China, seeks review of a November 5, 2008, order of the BIA denying her motion to reopen. In re Yan Hui Zheng, No. A 077 925 186 (B.I.A. Nov. 5, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of Zheng’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Although Zheng’s motion was indisputably untimely, there is no time or numerical limitation if the alien establishes materially “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
The BIA did not abuse its discretion in finding that the birth of Zheng’s two U.S. citizen children, as well as her practice of Falun Gong in the United States, constituted a change in her personal circumstances rather than a change in country conditions sufficient to excuse the untimely filing of her motion to reopen. See Wei Guang Wang v. BIA 437 F.3d 270, 274 (2d Cir. 2006).
Furthermore, contrary to Zheng’s argument, the BIA did not place excessive reliance on the 2007 State Department Country Report on China because it also considered and rejected her “contrary” and “countervailing” evidence. See Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004). The BIA reasonably declined to credit that unauthenticated evidence based on the Immigration Judge’s underlying adverse credibility determination. See Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir. 2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED 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).