Cho-Ping Zhen v. Holder ( 2009 )

08-5041-ag
Zhen v. Holder
BIA
A072 460 484
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
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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 21 st day of December, two thousand nine.
PRESENT:
HON. DENNIS JACOBS,
Chief Judge,
HON. ROGER J. MINER,
HON. REENA RAGGI,
Circuit Judges.
_________________________________________
CHO-PING ZHEN,
Petitioner,
v. 08-5041-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
Respondent.
_________________________________________
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR PETITIONER: Theodore N. Cox, New York, New York.
FOR RESPONDENTS: Tony West, Assistant Attorney
General, Civil Division, Michelle
Gorden Latour, Assistant Director,
Brendan P. Hogan, Attorney, Office
of Immigration Litigation, U.S.
Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Cho-Ping Zhen, a native and citizen of the People’s
Republic of China, seeks review of a September 23, 2008 order
of the BIA denying his motion to reopen. In re Cho-Ping Zhen,
No. A072 460 484 (B.I.A. Sept. 23, 2008). We assume the
parties’ familiarity with the underlying facts and procedural
history of the case.
Reviewing for abuse of discretion, see Kaur v. BIA, 413
F.3d 232, 233 (2d Cir. 2005) (per curiam), we conclude that
the BIA did not abuse its discretion in denying Zhen’s motion
to reopen. With certain exceptions not applicable here, see
8 C.F.R. § 1003.2(c)(3), federal regulations permit an
individual to file only one motion to reopen, and require that
the motion be filed within ninety days of a final agency
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order, see 8 C.F.R. § 1003.2(c)(2). Zhen’s second motion to
reopen, filed more than six years after the BIA’s final order
of exclusion, is both number-barred and untimely.
Zhen argues that the BIA should have reopened his
proceedings pursuant to an interim rule adopted by the
Attorney General allowing “arriving aliens” placed in removal
proceedings to apply for adjustment of status with the United
States Citizenship and Immigration Services (“USCIS”). See 71
Fed. Reg. 27,585, at 27,588 (May 12, 2006). Citing Sheng Gao
Ni v. BIA, 520 F.3d 125 (2d Cir. 2008), Zhen asserts that the
BIA’s denial of his motion to reopen exposes him to the
enforcement of his deportation order and thus renders the
interim rule worthless.
Zhen’s reliance on Sheng Gao Ni is misplaced, as that
case involved petitioners seeking review of the BIA’s denial
of timely motions to reopen. Petitioners in such
circumstances are not required to meet any exception to the
time and numerical limitations on motions to reopen. In
contrast, as noted above, Zhen’s motion was both untimely and
number-barred. Thus, we find no abuse of discretion in the
BIA’s denial of his motion. See 8 C.F.R. § 1003.2(c)(2).
We lack jurisdiction to review the BIA’s decision not to
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reopen Zhen’s proceedings sua sponte under 8 C.F.R. §
1003.2(a). Such a decision is “entirely discretionary.”
Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
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(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:____________________________
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