         09-3512-ag
         Shao v. Holder
                                                                                       BIA
                                                                               A073 568 657
                           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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 31 st day of March, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                    Chief Judge,
 9                JON O. NEWMAN,
10                GERARD E. LYNCH,
11                    Circuit Judges.
12       ______________________________________
13
14       LIANG WEI SHAO,
15                Petitioner,
16                                                              09-3512-ag
17                        v.                                    NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:               Galab B. Dhungana, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Anthony C. Payne, Senior
29                                     Litigation Counsel, Office of
30                                     Immigration Litigation; Lance L.
31                                     Jolley, Trial Attorney, Office of
32                                     Immigration Litigation, Civil
33                                     Division, United States Department
34                                     of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DENIED.

5        Petitioner, Liang Wei Shao, a native and citizen of the

6    People’s Republic of China, seeks review of a July 20, 2009,

7    order of the BIA denying his motion to reopen his removal

8    proceedings.    In re Liang Wei Shao, No. A 073 568 657

9    (B.I.A. July 20, 2009).     We assume the parties’ familiarity

10   with the underlying facts and procedural history of the

11   case.

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

13   abuse of discretion.     Ali v. Gonzales, 448 F.3d 515, 517 (2d

14   Cir. 2006).    When the BIA considers relevant evidence of

15   country conditions in evaluating a motion to reopen, we

16   review the BIA’s factual findings under the substantial

17   evidence standard.     See Jian Hui Shao v. Mukasey, 546 F.3d

18   138, 169 (2d Cir. 2008).

19       An alien may only file one motion to reopen and must do

20   so within 90 days of the final administrative decision.

21   8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).     It is

22   indisputable that Shao’s motion to reopen was untimely.

23   However, the time limitation does not apply if the alien

24   establishes materially changed circumstances arising in the

                                     2
1    country of nationality.   8 U.S.C. § 1229a(c)(7)(C)(ii);

2    8 C.F.R. § 1003.2(c)(3)(ii).

3        In denying Shao’s motion to reopen, the BIA found that

4    he failed to demonstrate a change in China’s enforcement of

5    the family planning policy.    Shao does not address this

6    finding, and even concedes that the evidence he submitted

7    demonstrated only an ongoing policy of persecution.      Because

8    Shao failed to explain how his evidence demonstrated a

9    change in circumstances arising in China, the BIA did not

10   abuse its discretion in denying Shao’s untimely motion to

11   reopen.   See 8 U.S.C. 1229a(c)(7)(C)(ii); 8 C.F.R.

12   § 1003.2(c)(3)(ii).   For these same reasons, Shao’s due

13   process claim is entirely without merit.    See Li Hua Lin v.

14   U.S. Dep’t of Justice, 453 F.3d 99, 104-05 (2d Cir. 2006)

15   (noting that due process “requires that an applicant receive

16   a full and fair hearing which provides a meaningful

17   opportunity to be heard.”).

18       For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot.

23                                 FOR THE COURT:
24                                 Catherine O’Hagan Wolfe, Clerk
25
26



                                    3
