Qi Ju Zheng v. Holder ( 2010 )

08-3521-ag
Zheng v. Holder
BIA
A076 684 568
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
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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 30 th day of July, two thousand ten.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
QI JU ZHENG,
Petitioner,
v. 08-3521-ag
NAC
ERIC H. HOLDER, JR., U.S. ATTORNEY
GENERAL, *
Respondent.
_______________________________________
FOR PETITIONER: Peter L. Quan, New York, New York.
*
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 RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Blair T. O’Connor,
Assistant Director, Remi Adalemo,
Attorney, Office of Immigration
Litigation, Civil Division, United
States 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.
Petitioner Qi Ju Zheng, a native and citizen of the
People’s Republic of China, seeks review of a June 27, 2008
order of the BIA denying his motion to reopen his removal
proceedings. In re Qi Ju Zheng, No. A076 684 568 (B.I.A.
June 27, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion, mindful that such motions are
“‘disfavored.’” See Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23
(1992)). An alien who has been ordered removed may file one
motion to reopen within ninety days of the final
administrative order of removal. 8 U.S.C. § 1229a(c)(7).
This deadline may be excused if the alien can establish
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“changed country conditions arising in the country of
nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA properly denied
Zheng’s motion to reopen as untimely because it was filed
more than five years after his May 6, 2002 final order of
removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2).
Relying on Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d
Cir. 2006), Zheng maintains that he has adduced new evidence
establishing that he would be forcibly sterilized based on
the birth of his two United States-born children. This
argument is foreclosed by Jian Hui Shao v. Mukasey, 546 F.3d
138, 169, 172-73 (2d Cir. 2008), which explained that the
documents adduced in Guo do not, by themselves, demonstrate
an alien’s prima facie eligibility for relief. Accordingly,
the BIA did not abuse its discretion in denying Zheng’s
motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 C.F.R. § 1003.2(c)(3)(ii).
With respect to Zheng’s derivative asylum claim, as the
government concedes, the BIA erroneously relied on Zheng’s
age at the time his derivative asylum application was filed,
rather than at the time his father’s asylum application was
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filed. 8 U.S.C. § 1158(b)(3)(B). Remand, however, would be
futile because the BIA properly found that Zheng is now
married and therefore does not qualify as a child eligible
to derive asylum from his parent under 8 U.S.C.
§ 1158(b)(3)(B). See Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 315, 338 (2d Cir. 2006) (holding that error does
not require remand if remand would be futile); see also
Akhtar v. Gonzales, 406 F.3d 399, 407 (6th Cir. 2005)
(holding that agency properly precluded petitioner, who
turned twenty-one years old while his parent’s application
was pending, from applying for derivative asylum because he
was married).
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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