20-991 Zhang v. Garland BIA A205 904 310 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 Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 15th day of December, two thousand twenty- 5 two. 6 7 PRESENT: 8 GERARD E. LYNCH, 9 RAYMOND J. LOHIER, JR., 10 STEVEN J. MENASHI, 11 Circuit Judges. 12 _____________________________________ 13 14 LING ZHANG, 15 Petitioner, 16 17 v. 20-991 18 NAC 19 MERRICK B. GARLAND, UNITED 20 STATES ATTORNEY GENERAL, 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: Jie Han, Esq., Flushing, NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Acting Assistant 27 Attorney General; Linda S. 28 Wernery, Assistant Director; Sarah 29 Byrd, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.

4 UPON DUE CONSIDERATION of this petition for review of a

5 Board of Immigration Appeals (“BIA”) decision, it is hereby

6 ORDERED, ADJUDGED, AND DECREED that the petition for review

7 is DENIED.

8 Petitioner Ling Zhang, a native and citizen of the

9 People’s Republic of China, seeks review of a February 21,

10 2020 decision of the BIA denying her motion to reopen her

11 removal proceedings. In re Ling Zhang, No. A205 904 310

12 (B.I.A. Feb. 21, 2020). We assume the parties’ familiarity

13 with the underlying facts and procedural history.

14 We review the BIA’s denial of a motion to reopen for

15 abuse of discretion. Ali v. Gonzales,

(2d

16 Cir. 2006). “[A]gency fact-finders have a particular duty

17 explicitly to consider relevant evidence of country

18 conditions when a petitioner bases a motion to reopen on a

19 purported change in those conditions.” Jian Hui Shao v.

20 Mukasey,

(2d Cir. 2008). Where, as here,

21 “such consideration has been given, we review the BIA’s fact-

22 finding only for substantial evidence.”

(quotation marks

23 omitted). It is undisputed that Zhang’s motion to reopen was 2 1 time barred because she filed it in August 2019, nearly three

2 years after the BIA’s final administrative decision in

3 November 2016. See 8 U.S.C. § 1229a(c)(7)(C)(i) (90-day

4 window for filing a motion to reopen); 8 C.F.R.

5 § 1003.2(c)(2) (same).

6 There is an exception to the time limitation if the

7 motion is filed to seek asylum “based on changed country

8 conditions arising in the country of nationality or the

9 country to which removal has been ordered, if such evidence

10 is material and was not available and would not have been

11 discovered or presented at the previous proceeding.”

12 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

13 § 1003.2(c)(3)(ii). “In determining whether evidence

14 accompanying a motion to reopen demonstrates a material

15 change in country conditions that would justify reopening,

16 [the BIA] compare[s] the evidence of country conditions

17 submitted with the motion to those that existed at the time

18 of the merits hearing below.” In re S-Y-G-,

247, 253 (B.I.A. 2007).

20 The BIA did not err in finding that Zhang failed to

21 demonstrate a material change in conditions in China as needed

3 1 to excuse the time limitation. Zhang submitted two 2019 news

2 articles with her motion. The articles reveal that (1) the

3 Chinese government banned Falun Gong in the 1990s,

4 (2) allegations of forced organ harvesting of prisoners arose

5 as early as 2001, (3) “[f]orced organ harvesting has been

6 committed for years throughout China on a significant scale,”

7 and (4) the Chinese government proclaimed in 2014 that it

8 would phase out the practice of extracting organs from

9 prisoners (but it is unclear if that has occurred). This

10 country conditions evidence does not demonstrate a material

11 worsening of conditions since Zhang’s 2014 hearing but shows

12 instead that the Chinese government’s mistreatment of Falun

13 Gong practitioners and practice of organ harvesting have been

14 ongoing since before that time. Zhang also referred to the

15 2014 State Department Report, but that report similarly

16 reflects that advocacy groups were reporting organ harvesting

17 of prisoners at that time. Zhang’s affidavits from fellow

18 Falun Gong practitioners do not describe a material worsening

19 in the treatment of Falun Gong practitioners in China or an

20 increase in organ harvesting between 2014 and 2019. Rather,

21 one affidavit reports that the “brutal persecution of Falun

4 1 [Gong] practitioners has been going on since July 1999.”

2 Finally, Zhang’s claim of ineffective assistance of

3 counsel cannot cure the untimeliness of her motion to reopen.

4 While “ineffective assistance of counsel can, in some

5 circumstances, afford an alien additional time beyond the

6 limitations period for a motion to reopen and relieve a

7 petitioner from the numerical bar,” such equitable tolling is

8 available only where the petitioner has “demonstrate[d] that

9 he or she has exercised due diligence during the entire period

10 he or she seeks to toll.” Rashid v. Mukasey,

,

11 130-32 (2d Cir. 2008). Zhang retained her current counsel

12 as early as 2015, when she appealed the IJ’s decision to the

13 BIA. The record does not show—and in any event Zhang fails

14 to argue—that she exercised due diligence during the more

15 than three years between then and her 2019 motion to reopen.

16 On this record, the BIA did not abuse its discretion in

17 finding that Zhang failed to meet her burden to demonstrate

18 a material change in conditions in China since her 2014

19 hearing before an immigration judge. See 8 U.S.C.

20 § 1229a(c)(7)(C)(ii);

(c)(3)(ii); In re S-

21 Y-G-, 24 I. & N. Dec. at 257 (explaining that “[c]hange that

5 1 is incremental or incidental does not meet the regulatory

2 requirements for late motions”).

3 For the foregoing reasons, the petition for review is

4 DENIED. All pending motions and applications are DENIED and

5 stays VACATED.

6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, 8 Clerk of Court 9

6