Jian Wei Zhu v. Holder ( 2013 )

12-1823
Zhu v. Holder
BIA
A078 195 863
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 7th day of August, two thousand thirteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _________________________________________
12
13 JIAN WEI ZHU,
14 Petitioner,
15
16 v. 12-1823
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Troy Nader Moslemi, New York, New
24 York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Richard M. Evans, Assistant
28 Director; Virginia Lum, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Petitioner Jian Wei Zhu, a native and citizen of the
6 People’s Republic of China, seeks review of the April 17,
7 2012 decision of the BIA denying his motion to reopen. In
8 re Jian Wei Zhu, No. A078 195 863 (B.I.A. Apr. 17, 2012).
9 We assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 The BIA’s denial of Zhu’s motion to reopen as untimely
12 and number barred was not an abuse of discretion. See Kaur
13 v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An
14 alien may file one motion to reopen, generally no later than
15 90 days after the date on which the final administrative
16 decision was rendered in the proceedings sought to be
17 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.
18 § 1003.2(c)(2). There is no dispute that Zhu’s 2012 motion
19 was untimely, as his final administrative order was issued
20 in 2007, and he had previously filed two other motions to
21 reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
22 § 1003.2(c)(2). However, the time limitation does not apply
2
1 to a motion to reopen if it is “based on changed
2 circumstances arising in the country of nationality . . . if
3 such evidence is material and was not available and could
4 not have been discovered or presented at the previous
5 hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.
6 § 1229a(c)(7)(C)(ii).
7 Here, the BIA did not abuse its discretion in declining
8 to reopen Zhu’s proceedings because he failed to submit a
9 new asylum application with his motion, and Zhu does not
10 challenge this dispositive finding in his brief to this
11 Court. Pursuant to 8 C.F.R. § 1003.2(c)(1), “[a] motion to
12 reopen proceedings for the purpose of submitting an
13 application for relief must be accompanied by the
14 appropriate application for relief.” The agency’s
15 interpretations of its own regulations are accorded
16 “substantial deference,” Joaquin-Porras v. Gonzales, 435
17 F.3d 172, 178 (2d Cir. 2006) (citations omitted), “unless it
18 is plainly erroneous or inconsistent with the regulation . .
19 . or inconsistent with the agency’s previous
20 interpretation,” Zhen Nan Lin v. U.S. Dep’t of Justice, 459
21 F.3d 255, 262 (2d Cir. 2006) (citations omitted). Because
22 the plain language of 8 C.F.R. § 1003.2(c)(1) provides that
3
1 a motion to reopen “must be accompanied by the appropriate
2 application for relief,” 8 C.F.R. § 1003.2(c)(1) (emphasis
3 added), we do not conclude that the BIA erred by denying
4 Zhu’s motion because he failed to file an asylum application
5 based on his new religion claim. See Joaquin-Porras, 435
6 F.3d at 178.
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 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
17
4