Xiu Zheng v. Eric Holder, Jr. , 548 F. App'x 869 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1592
XIU ZHEN ZHENG, a/k/a Xue Hua Zheng, a/k/a Farzeea Binte
Abu Bakar Falli,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 10, 2013 Decided: December 17, 2013
Before KING, SHEDD, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Peter L. Quan, LAW OFFICES OF PETER L. QUAN, P.L.L.C., Flushing,
New York, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Terri J. Scadron, Assistant Director, Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xiu Zhen Zheng, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”), denying her motion to reopen.
We deny the petition for review.
The denial of a motion to reopen is reviewed for abuse
of discretion. 8 C.F.R. § 1003.2(a) (2013); Mosere v. Mukasey,
552 F.3d 397, 400 (4th Cir. 2009); Jean v. Gonzales, 435 F.3d
475, 481 (4th Cir. 2006). The Board’s “denial of a motion to
reopen is reviewed with extreme deference, given that motions to
reopen are disfavored because every delay works to the advantage
of the deportable alien who wishes merely to remain in the
United States.” Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.
2009) (internal quotation marks omitted). The motion “shall
state the new facts that will be proven at a hearing to be held
if the motion is granted and shall be supported by affidavits or
other evidentiary material.” 8 C.F.R. § 1003.2(c)(1) (2013).
Further, the motion “shall not be granted unless it appears to
the Board that evidence sought to be offered is material and was
not available and could not have been discovered or presented at
the former hearing.” Id.We have also recognized three independent grounds on
which a motion to reopen removal proceedings may be denied:
“(1) the alien has not established a prima facie case for the
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underlying substantive relief sought; (2) the alien has not
introduced previously unavailable, material evidence; and
(3) where relief is discretionary, the alien would not be
entitled to the discretionary grant of relief.” Onyeme v. INS,
146 F.3d 227, 234 (4th Cir. 1998) (citing INS v. Abudu, 485 U.S.
94, 104-05 (1988)). We will reverse the denial of a motion to
reopen only if it is “‘arbitrary, irrational, or contrary to
law.’” Mosere, 552 F.3d at 400 (internal quotation marks
omitted).
An alien may file one motion to reopen within ninety
days of the entry of a final order of removal. 8 U.S.C.
§ 1229a(c)(7)(A), (C) (2012); 8 C.F.R. § 1003.2(c)(2) (2013).
This time limit does not apply if the basis for the motion is to
seek asylum or withholding of removal based on changed country
conditions, “if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii).
Zheng concedes that her motion was untimely. We
conclude that the Board did not abuse its discretion in finding
that she failed to show a change in country conditions that
would excuse a late motion to reopen. We also conclude that
there was no abuse of discretion by the Board in its
consideration of the medical records Zheng submitted in support
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of her new allegation that she suffered three forced abortions
in China. Because Zheng failed to show a change in country
conditions, her claim that she had a well-founded fear of
persecution based on her having given birth to two children is a
change in personal circumstances which does not excuse a late
motion to reopen. See Ji Cheng Ni v. Holder, 715 F.3d 620, 624
(7th Cir. 2013) (birth of applicant’s two children was a change
in personal circumstances and not a change in country
conditions); Mei Ya Zhang v. Attorney Gen., 572 F.3d 1316, 1319
(11th Cir. 2009) (“An alien cannot circumvent the requirement of
changed country conditions by demonstrating only a change in her
personal circumstances.”).
We also conclude that the Board did not err in finding
that Zheng did not comply with the requirements for showing that
she received ineffective assistance of counsel. See Barry v.
Gonzales, 445 F.3d 741, 745-47 (4th Cir. 2006).
Because Zheng was in asylum-only proceedings, the
Board correctly found it did not have jurisdiction to consider
the approved visa petition or her application for adjustment of
status. See Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008)
(the relevant statutes and regulations do not give the Board
jurisdiction to adjust status in asylum-only proceedings); see
also Gjerjaj v. Holder, 691 F.3d 288, 293 (2d Cir. 2012).
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Insofar as Zheng argues that reopening should have
been granted in light of her younger child’s health issues, we
note that such relief is not generally available through an
untimely motion to reopen without establishing a change in
country conditions.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
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