Zhang Cheng v. Holder
Zhang Cheng v. Holder
Opinion of the Court
SUMMARY ORDER
Petitioner Zhang Cheng, a native and citizen of the People’s Republic of China, seeks review of a December 19, 2008 order of the BIA denying his motion to reopen. In re Zhang Cheng, No. A073 133 454 (B.I.A. Dec. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this 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) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)).
Cheng argues that the BIA abused its discretion by failing to consider evidence he submitted that allegedly showed changed country conditions in China regarding that country’s treatment of Catholics. This argument is unavailing. Nothing in the record compels the conclusion that the BIA failed to consider the evidence Cheng submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir. 2006) (presuming the agency has taken into account all of the evidence unless the record “compelling suggests otherwise”). To the contrary, the BIA listed Cheng’s evidence in its decision.
More significantly, regardless of the materiality of that evidence, the BIA reasonably determined that, because Cheng’s motion was predicated on his conversion to Catholicism subsequent to his arrival in the United States, he had alleged only a change in his personal circumstances. It is well-settled that such a change does not suffice to establish an exception to the timeliness requirement under 8 C.F.R. § 1003.2(c)(3)(ii). See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir. 2005) (finding that a change in personal circumstances does not establish an exception to the filing deadline for motions to reopen); cf. Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir. 2006) (“[I]t would be ironic, indeed, if petitioners ... who have remained in the United States illegally following an order of deportation, were permitted to have a second and third bite at the apple simply because they managed to marry and have children while evading authorities. This apparent gaming of the system in an effort to avoid deportation is not tolerated by the existing regulatory scheme.”).
Accordingly, because Cheng is under a final order of removal and did not file a timely motion to reopen or demonstrate materially changed country conditions excusing the untimeliness of his motion, the BIA did not abuse its discretion in denying his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3) (ii).
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(b).
Reference
- Full Case Name
- ZHANG CHENG v. Eric H. HOLDER Jr., U.S. Attorney General
- Status
- Published