Opinion
No. 09-3022-ag.
October 21, 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.
Gary J. Yerman, New York, NY, for Petitioner.
Tony West, Assistant Attorney General; Cindy S. Ferrier, Senior Litigation Counsel; Joseph A. O'Connell, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
PRESENT: REENA RAGGI, RICHARD C. WESLEY and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Jian Gan Zheng, a native and citizen of the People's Republic of China, seeks review of a December 3, 2009, order of the BIA affirming the December 5, 2007, decision of the Immigration Judge ("I J"), Robert D. Weisel, denying his second motion to reopen. In re Jian Gan Zheng, No. A072 054 646 (B.I.A. Dec. 3, 2009), aff'g No. A072 054 646 (Immig. Ct. N.Y. City Dec. 5, 2007). We assume the parties' familiarity with the underlying facts and procedural history of this case.
I. Jurisdiction
Although Zheng's July 2009 petition for review pre-dated the BIA's December 2009 amended final order of removal, we retain jurisdiction to entertain the instant petition for review. See Lewis v. Gonzales, 481 F.3d 125, 129 (2d Cir. 2007) (exercising jurisdiction over otherwise premature petition, notwithstanding lack of later-filed, timely petition, "when the BIA ha[d] since affirmed petitioner's removal order and the respondent ha[d] not shown prejudice" (internal citations and quotations omitted)). The BIA's December 2009 order affirmed, on the same grounds, Zheng's June 2009 removal order; and the government has not argued or demonstrated that "it was in any way prejudiced" by the early filing of Zheng's petition for review. See id. Thus, we retain jurisdiction to consider it. See id.
II. Agency's Denial of Zheng's Motion to Reopen
We review the BIA's denial of Zheng's motion to reopen for abuse of discretion. Kaur v. BIA 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). 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. § 1003.23(b)(1). There is no time or numerical limitation, however, if an 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. § 1003.23(b)(4)(i). Here, the BIA did not abuse its discretion in denying Zheng's second motion to reopen, which was indisputably untimely and number-barred.
As the BIA found, Zheng's decision to remain in the United States and father several children after being ordered excluded was a change in personal circumstances, not a change in country conditions. See Yuen Jin v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008); Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130 (2d Cir. 2005). Nor has Zheng submitted evidence to support his conclusory assertion that enforcement of China's population control policy has become more severe since the time of the IJ's decision. See, e.g., Wei Guang Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006). Rather, that evidence indicates only that Zheng will be subject to that policy upon his return to China as a result of the change in his personal circumstances, not any change in the policy.
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).