09-1669-ag
Zhou v. Holder
BIA
A095 708 744
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 3 rd day of March, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
RICHARD C. WESLEY,
Circuit Judges.
______________________________________
MIAO ZHOU,
Petitioner,
09-1669-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Fuhao Yang, New York, New York.
FOR RESPONDENT: Michael F. Hertz, Assistant Attorney
General; Blair T. O’Connor,
Assistant Director; Samia Naseem,
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.
Miao Zhou, a native and citizen of the People’s
Republic of China, seeks review of a March 23, 2009 order of
the BIA denying his motion to reopen as untimely filed. In
re Miao Zhou, No. A095 708 744 (B.I.A. Mar. 23, 2009). We
review the denial of a motion to reopen immigration
proceedings for abuse of discretion. See Ali v. Gonzales,
448 F.3d 515, 517 (2d Cir. 2006). In doing so here, we
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
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. 8 C.F.R. § 1003.2(c)(2).
Zhou does not contest that he filed his petition after the
90-day deadline had passed. Rather, he argues that the
BIA’s denial of his motion to reopen was “contrary to law”
because, as an “arriving alien,” he should have been allowed
to apply for adjustment of status on account of his marriage
to a U.S. citizen. Pet’r’s Br. at 10. The argument is
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without merit. As the government correctly contends, the
United States Citizenship and Immigration Services, not the
BIA, has jurisdiction to adjudicate the adjustment-of-status
application of an “arriving alien.” See Matter of Yauri, 25
I. & N. Dec. 103, 107 (B.I.A. 2009); see also Sheng Gao Ni
v. BIA, 520 F.3d 125, 129 (2d Cir. 2008).
Zhou’s reliance on the “changed circumstances”
exception set forth at 8 U.S.C. § 1158(a)(2)(D) is also
unavailing, as that provision has no bearing on motions to
reopen. See Yuen Jin v. Mukasey, 538 F.3d 143, 151-52 (2d
Cir. 2008). The BIA correctly concluded that Zhou did not
meet an exception to the filing deadline applicable to his
motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Thus, it did
not abuse its discretion in denying Zhou’s motion to reopen
as untimely.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, 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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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