Chang Fan Zeng v. Lynch

U.S. Court of Appeals for the Second Circuit
Chang Fan Zeng v. Lynch, 609 F. App'x 43 (2d Cir. 2015)
Katzmann, Raggi, Reena, Richard, Roberta, Wesley

Chang Fan Zeng v. Lynch

Opinion

SUMMARY ORDER

Petitioner Chang Fan Zeng, a native and citizen of China, seeks review of an August 12, 2013 decision of the BIA denying his motion to reopen. In re Chang Fan Zeng, No. A077 993 929 (B.I.A. Aug. 12, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

“We review the denial of motions to reopen immigration proceedings for abuse of discretion.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Aliens seeking to reopen proceedings may move to reopen no later than 90 days after the final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). That time limitation does not apply if the motion is “based on changed country conditions arising in the country of nationality ... if such evidence is material and was not available and would not have been discovered or presented at the previous hearing.” 8 U.S.C. § 1229a(c)(7)(C)(ii).

Zeng’s motion to reopen was untimely by five years. Thus, he needed to present reliable evidence of changed country conditions to support his claim that the Chinese government will persecute him for following Falun Gong. Zeng submitted a village committee notice that threatened him with severe punishment for practicing Falun Gong in the United States, and a letter from his father in China about his receipt *44 of that notice. The BIA reasonably gave little weight to those documents. While it may not have been reasonable for the BIA to expect additional authenticating evidence for the village committee notice, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-05 (2d Cir. 2005), the BIA did not abuse its discretion in discrediting it because it was tainted by the previous adverse credibility finding against Zeng, see Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir. 2007). That finding likewise .undermined the letter from Zeng’s father, which also was not notarized, appeared to be prepared for the purpose of litigation, and was written by an interested witness who would not be subject to cross-examination. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (holding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the agency); In re H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 214-15 (BIA 2010), overruled in part on other grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

The government seeks summary denial of the petition. We have considered the merits brief submitted by Zeng, and we treat the government’s motion as a response to it. For the foregoing reasons, the petition for review is DENIED and the government’s motion is DENIED as moot. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and Zeng’s pending motion for a stay of removal 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
CHANG FAN ZENG, Petitioner, v. Loretta E. LYNCH, United States Attorney General, Respondent
Status
Unpublished