Zhu v. Atty Gen USA

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-19-2008
Zhu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4344
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Zhu v. Atty Gen USA" (2008). 2008 Decisions. Paper 512.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/512
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4344
___________
ZHAO XIN ZHU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A78-864-293)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 18, 2008
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: September 19, 2008)
___________
OPINION OF THE COURT
___________
PER CURIAM
Zhao Xin Zhu (a.k.a. Qun Zheng), a native and citizen of China, petitions
for review of a decision of the Bureau of Immigration Appeals (BIA) denying his second
motion to reopen. For the following reasons, we will deny the petition.
As a minor, Zhu entered the United States at the O’Hare International
Airport in Chicago, Illinois, as a nonimmigrant Transit Without Visa on his way to Sao
Paolo, Brazil; he stayed beyond the eight-hour period authorized by immigration
authorities. He was taken into custody and served with a Notice to Appear (NTA). Zhu
appeared before an immigration judge (IJ), admitted the allegations and, thereafter,
applied for asylum, withholding of removal and protection under the Convention Against
Torture (CAT); the IJ denied all claims. On June 29, 2004, the BIA affirmed; we denied
his petition for review.1
On January 25, 2006, Zhu filed his first motion to reopen the Board’s June
29, 2004 decision, seeking to apply for asylum based on changed country conditions in
China. The BIA concluded that his claim of changed circumstances under 8 C.F.R.
1208.13(b)(1)(i)(A) was meritless and denied the motion as untimely. Zhu did not
petition for review of that decision.
In 2007, Zhu’s mother married his stepfather, a naturalized United States
citizen, who filed an I-130 Petition for Alien Relative on his behalf; the U.S. Citizen and
Immigration Services approved the petition. Zhu then filed a second motion to reopen
with the BIA to adjust his status pursuant to 8 U.S.C. 1229a(7), arguing that his approved
I-130 petition constitutes previously unavailable evidence, and that he is able to establish
his prima facie eligibility for adjustment of status.
1
See Zheng v. Gonzalez, 417 F.3d 379 (3d. Cir. 2005).
2
The BIA denied his second motion as untimely and “number-barred,”
concluding that Zhu did not fall within any of the exceptions. The BIA also pointed out
that Zhu’s approved I-130 petition did not indicate that he was eligible for adjustment of
status: The approval notice reflected a priority date of March 26, 2007, which was not
current according to the State Department’s Visa Bulletin for November 2007, which
indicated a current priority date of December 8, 2001. Through counsel, Zhu now
petitions for review of the BIA’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(5). We review the
BIA’s denial of a motion to reopen for abuse of discretion; and we will reverse the BIA’s
decision only if it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzalez, 447 F.3d
241, 251 (3d Cir. 2006).
Generally, petitioners must file motions to reopen within ninety-days of the
date of entry of the final administrative order of removal, see 8 U.S.C. §
1229a(c)(7)(C)(i), and they are generally limited to filing one such motion, see 8 C.F.R. §
1003.2(c)(2). The motion to reopen must state new facts to be proven and must be
supported by affidavits or other evidentiary material. See 8 U.S.C. § 1229a(c)(7)(B).
Finally, the movant must establish his prima facie eligibility for the underlying relief
sought. See I.N.S. v. Abudu, 485 U.S. 94, 104 (1988). A movant is not subject to the
time limits under 8 U.S.C. § 1229a(c)(7)(C)(i) if he is seeking to file applications for
asylum or withholding of removal based on changed country conditions. The number-
3
bar on motions to reopen is also subject to a number of exceptions. See 8 C.F.R. §
1003.2.
Zhu insists that the BIA’s decision was erroneous as a matter of law, given
his new status as an immediate relative of a United States citizen and his prima facie
eligibility for adjustment of status. However, these arguments do not resolve the
problem that his motion to reopen was untimely, having been filed over four years after
the BIA affirmed the IJ’s original order of removal, and number barred, as it is his second
motion. Because none of the statutory exceptions applies, see 8 U.S.C. § 1229a(c)(7)(C)
& 8 C.F.R. § 1003.2, we agree that it is untimely and number-barred.
Even assuming that the motion were properly before the BIA, it correctly
ruled that the approved I-130 petition does not establish Zhu’s eligibility for adjustment
of status.2 Under § 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), an
alien must have access to an “immediately available” visa in order to be eligible for
adjustment of status. See also 8 C.F.R. §1245.1(g)(1). As the beneficiary of an approved
I-130 petition filed by a parent who is a citizen, Zhu is subject to the worldwide numerical
limitations on the allocation of visas, which are set forth in 8 U.S.C. § 1153(a). Because
he is unmarried, he falls within the first-preference category of family-sponsored
applicants. Id. According to the State Department’s Visa Bulletin for February 2008,
2
8 U.S.C. 1252(a)(2)(B)(i) does not foreclose judicial review of the BIA’s
determination that an application was legally ineligible for adjustment. See Pinho v.
Gonzalez, 432 F.3d 193, 204 (3d Cir. 2005).
4
visas are currently being allocated to individuals in Zhu’s preference category who have
been issued priority dates of February 8, 2002 and earlier. The BIA correctly determined
that Zhu does not have a currently available visa because his approved I-130 petition
reflects a priority date of March 26, 2007. Therefore, we agree that Zhu is prima facie
ineligible for adjustment of status.
Because we conclude that the BIA did not abuse its discretion in denying
Zhu’s second motion to reopen, because its findings were not contrary to law, we will
deny his petition for review.3
3
To the extent that Zhu’s petition for review includes a motion for declaratory and
injunctive relief, the motion is denied.
5