Chi Feng Zheng v. Holder

09-3769-ag
Zheng v. Holder
BIA
A077 776 954
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 17 th day of May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROBERT A. KATZMANN,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _______________________________________
12
13 CHI FENG ZHENG,
14 Petitioner,
15
16 v. 09-3769-ag
17 NAC
18
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Peter L. Quan, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Linda S. Wernery, Assistant
28 Director, James E. Grimes, Senior
29 Litigation Counsel, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 review is DENIED.

5 Petitioner Chi Feng Zheng, a native and citizen of the

6 People’s Republic of China, seeks review of an August 13,

7 2009, order of the BIA denying his motion to reopen his

8 removal proceedings. In re Chi Feng Zheng, No. A077 776 954

9 (B.I.A. Aug. 13, 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. See Ali v. Gonzales, 448 F.3d 515, 517

14 (2d Cir. 2006). An alien who has been ordered removed may

15 file one motion to reopen, but must do so within 90 days of

16 the final administrative decision. 8 U.S.C. § 1229a(c)(7).

17 Here, it is beyond dispute that Zheng’s motion to reopen was

18 untimely.

19 The 90-day filing deadline may be excused if the alien

20 can establish “changed country conditions arising in the

21 country of nationality . . . .” 8 U.S.C.

22 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA

2
1 reasonably concluded, however, that the evidence Zheng

2 submitted, a notice purportedly sent to him by the Chinese

3 government, “[did] not establish . . . that the government

4 now is motivated to persecute [him] for a new reason.” See

5 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.

6 2008). Indeed, the notice did not reveal a change in

7 country conditions, but merely supported the same claim that

8 Zheng had asserted before the IJ.

9 Furthermore, the BIA did not abuse its discretion by

10 denying Zheng’s motion to reopen based on a pending I-130

11 visa petition filed on his behalf. As the BIA found,

12 eligibility to adjust status is not a statutory basis for

13 excusing the untimely filing of a motion to reopen. See

14 8 U.S.C. § 1229a(c)(7)(C)(ii). Thus, when an alien seeks

15 reopening in an untimely motion on the basis that he is

16 eligible to adjust his status, he is invoking the BIA’s

17 authority to reopen proceedings sua sponte. 8 C.F.R.

18 § 1003.2(a); Mahmood v. Holder, 570 F.3d 466, 470-71 (2d

19 Cir. 2009). The BIA’s determination as to whether it will

20 exercise that authority is entirely discretionary and thus

21 beyond the scope of this Court’s jurisdiction. See Ali v.

22 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Cf. Mahmood,

23 570 F.3d at 470-71.

3
1 Because Zheng did not demonstrate changed country

2 conditions, the BIA did not abuse its discretion in denying

3 his motion. Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.

4 2008). Accordingly, we need not reach his argument that he

5 is prima facie eligible for relief. See 8 U.S.C.

6 § 1229a(c)(7)(C)(ii).

7 For the foregoing reasons, the petition for review is

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

9 removal that the Court previously granted in this petition

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

11 this petition is DISMISSED as moot. Any pending request for

12 oral argument in this petition is DENIED in accordance with

13 Federal Rule of Appellate Procedure 34(a)(2), and Second

14 Circuit Local Rule 34.1(b).
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19

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