09-4255-ag
Zheng v. Holder
BIA
A070 907 042
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8 th day of July, two thousand ten.
PRESENT:
JON O. NEWMAN,
GUIDO CALABRESI,
JOSÉ A. CABRANES,
Circuit Judges.
___________________________________
HUA RUI ZHENG,
Petitioner,
v. 09-4255-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
___________________________________
FOR PETITIONER: G. Victoria Calle, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Jennifer Levings, Senior Litigation
Counsel; Carmel A. Morgan, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Hua Rui Zheng, a native and citizen of the
People’s Republic of China, seeks review of the September 17,
2009, order of the BIA denying his motion to reopen. In re
Hua Rui Zheng, No. A070 907 042 (B.I.A. Sept. 17, 2009). We
review the BIA’s denial of a motion to reopen for abuse of
discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.
2006). We assume the parties’ familiarity with the underlying
facts and procedural history of the case.
The BIA did not abuse its discretion in denying Zheng’s
motion to reopen as untimely and number-barred. See Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). A motion to
reopen must generally be filed no later than 90 days after the
date on which the final administrative decision was rendered
in the proceedings sought to be reopened and only one such
motion may be filed. 8 C.F.R. § 1003.2(c)(2). There is no
dispute that Zheng’s second motion to reopen, filed in March
2009, was numerically barred and untimely. See id.
Zheng’s argument that a change in applicable law excused
the untimely filing of his motion, in reliance on 8 C.F.R.
-2-
§ 1208.4(a)(4)(i), is misplaced, insofar as that provision has
no bearing on motions to reopen. See Yuen Jin v. Mukasey, 538
F.3d 143, 151-52 (2d Cir. 2008). Similarly, Zheng’s citation
to Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 2007), is
inapposite because, in that case, the petitioner sought
adjustment of status while his removal proceedings were
pending. Here, in contrast, the BIA issued a final order of
removal more than five years before Zheng took any steps
toward adjusting his status, and the BIA denied his motion
based on its reasonable determination that he had not
demonstrated that any statutory or regulatory exceptions
excused the untimely and number-barred filing of his motion.
See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.
2006). Moreover, contrary to Zheng’s arguments, our decision
in Sheng Gao Ni v. BIA, 520 F.3d 125 (2d Cir. 2008), does not
require reopening here because the BIA did not deny his motion
to reopen on jurisdictional grounds, but based on the time and
number limits found in the agency’s regulations. See 8 C.F.R.
§ 1003.2(c)(2).
As Zheng acknowledges, we lack jurisdiction to review the
BIA’s discretionary decision not to reopen his proceedings sua
sponte. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
-3-
2006). Although we retain jurisdiction to consider an
argument that the agency declined to exercise its sua sponte
authority because it misperceived the law, see Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009), Zheng contends only
that it is “ not clear” whether the BIA’s decision was
predicated on flawed factual findings.
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).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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