Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-18-2005
Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2710
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Zheng v. Atty Gen USA" (2005). 2005 Decisions. Paper 1165.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1165
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 04-2710
______________
XIU HUA ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNTIED STATES,
Respondent
____________
ON PETITION FOR REVIEW FROM AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(Board No. A73-169-175)
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 4, 2005
Before: McKEE, VAN ANTWERPEN and WEIS, Circuit Judges.
(Filed May 18, 2005)
____________
OPINION
WEIS, Circuit Judge.
Petitioner is a native and citizen of China who arrived in the United States
without inspection in 1993. On October 3, 2003, the Board of Immigration Appeals
1
denied the petitioner’s claims for asylum, violations of the Convention Against Torture,
and withholding of deportation. In addition, the BIA denied a remand for adjustment of
status based on an employer’s application for a visa for petitioner.
On June 1, 2004, the BIA denied motions to reopen and reconsider the
October 3, 2003 decision. Petitioner has appealed only the June 1, 2004 order.
The petitioner’s brief argues the merits of his case underlying the BIA’s
order of October 3, 2003. However, a petition for review of that order should have been
filed in this Court within thirty days. 8 U.S.C. § 1252(b)(1); see also Stone v. INS, 514
U.S. 386 (1995). Petitioner does not discuss that issue but simply argues as if the October
3, 2003 order were at issue; it is not. The question before us is whether the BIA abused
its discretion in denying the motions to reopen and reconsider.
The Board has considerable discretion in deciding whether to reopen. Here,
petitioner presented his employer’s application for a visa based on employment. The
Board was justified in not relying on that documentation because the request for an
employment-based visa is dependent on meeting a quota. The likelihood of the
application being approved was far from certain. In addition, the Service opposed the
motion to reopen.
Petitioner challenges the IJ’s adverse credibility determination, but we
conclude that contention lacks merit. We have held that an adverse credibility finding
may not be based on collateral inconsistencies. Tarrawally v. Ashcroft, 338 F.2d 180,
2
187 (3d Cir. 2003). In this case, however, the IJ’s adverse finding was based on a number
of major inconsistencies that were detailed in his opinion. These inconsistencies went to
the heart of the petitioner’s application. The Board was thus well within its discretion
when it determined that the petitioner did not support his claim for reopening.
We find no abuse of discretion here. Nor is there new evidence in the
record to justify granting the motion to reconsider. Petitioner must show an abuse of
discretion. Merely re-arguing the merits of the original order of October 3, 2003 does not
satisfy his burden.
Accordingly, the petition for review will be denied.
3