14-1109-ag
Chuan Quan Zheng v. Eric H. Holder

                                     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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 16th day of January, two thousand fifteen.

PRESENT:            JOSÉ A. CABRANES,
                    CHESTER J. STRAUB,
                    DEBRA ANN LIVINGSTON,
                                  Circuit Judges.


CHUAN QUAN ZHENG,

                    Petitioner,

                              v.
                                                             No. 14-1109-ag
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,

                    Respondent.


FOR PETITIONER:                                       Chunyu Jean Wang, Wang Law Office, PLLC,
                                                      Flushing, NY.

FOR APPELLEE:                                         Joyce R. Branda, Acting Assistant Attorney
                                                      General; Jennifer L. Lightbody, Senior
                                                      Litigation Counsel; Andrea N. Gevas, Trial
                                                      Attorney, Office of Immigration Litigation,
                                                      United States Department of Justice,
                                                      Washington, D.C.
        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review of a Board of Immigration Appeals
decision is DENIED.

        Petitioner Chuan Quan Zheng, a native and citizen of China, seeks review of an
April 8, 2014 decision of the Board of Immigration Appeals (“BIA”) affirming a December 9, 2013,
decision of an Immigration Judge (“IJ”) denying Zheng’s motion to reopen. In re Chuan Quan Zheng,
No. A072 780 740 (B.I.A. Apr. 8, 2014), aff’g No. A072 780 740 (Immig. Ct. N.Y. City Dec. 9, 2013).
We assume the parties’ familiarity with the underlying facts and procedural history in this case.

         Where, as here, the BIA has applied the correct law, we review the BIA’s decision affirming
an IJ’s denial of a motion to reopen for abuse of discretion, Maghradze v. Gonzales, 462 F.3d 150, 152
(2d Cir. 2006), remaining mindful of the Supreme Court’s admonition that such motions are
“disfavored,” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314,
323 (1992)). An alien seeking to reopen proceedings is required to file a motion to reopen no later
than 90 days after the date on which the final administrative decision was rendered and may file only
one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).

        The BIA did not abuse its discretion in affirming the IJ’s denial of Zheng’s motion to
reopen. The Immigration and Nationality Act (“INA”) provides: “[i]f the Attorney General finds
that an alien has reentered the United States illegally after having been removed or having departed
voluntarily, under an order of removal, the prior order of removal is reinstated from its original date
and is not subject to being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). We defer to the agency’s
regulatory interpretation of § 1231(a)(5), under which reinstatement is automatic upon a
determination that: (1) the alien is the same person against whom the prior removal order had been
entered, and (2) the alien had unlawfully reentered the country. Garcia-Villeda v. Mukasey, 531 F.3d
141, 148-49 (2d Cir. 2008); see also 8 C.F.R. § 241.8. The Department of Homeland Security
(“DHS”) must give the alien the opportunity to issue a formal oral or written statement contesting
the immigration officer’s findings before reinstating the prior order of removal. 8 C.F.R. § 241.8(b).
The alien has no right to a hearing before an IJ. 8 C.F.R. § 241.8(a).

        Here, the IJ’s original order of deportation was reinstated in September 2013, preventing the
IJ from granting Zheng’s November 2013 motion to reopen. Although Zheng argues that he did
not receive proper notice of the reinstatement order in accordance with due process, there is
nothing to suggest that DHS did not follow the procedures outlined in 8 C.F.R. § 241.8, the
constitutionality of which we have previously upheld. See Garcia-Villeda, 531 F.3d at 149-50.

        Moreover, Zheng has never contested the determinations underlying the reinstatement
order. “[W]hen an alien declines to challenge at the agency level the findings that support
reinstatement of a prior order of removal, he has no grounds to complain in court that the

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reinstatement procedures deprived him of due process of law.” Miller v. Mukasey, 539 F.3d 159, 164
(2d Cir. 2008). Although he argued that he did not have proper notice of the reinstatement order
before the IJ, Zheng has never contested that he (1) is the same person against whom the prior
removal order had been entered; and (2) had unlawfully reentered the country.

        Accordingly, because Zheng’s prior removal order was properly reinstated, the IJ and BIA
lacked jurisdiction to review that order or reopen proceedings. 8 U.S.C. § 1231(a)(5).

          Indeed, the only relief available to Zheng after the reinstatement order was issued was
withholding of removal and relief under the Convention Against Torture. See 8 C.F.R. §§ 208.31,
241.8(e). Zheng, however, withdrew his request for a reasonable fear interview to determine his
eligibility for those forms of relief.

         We decline to review Zheng’s argument that he was deprived of due process during the
proceedings underlying his original order of deportation. An alien may not collaterally attack an
underlying deportation order during reinstatement proceedings. Miller, 539 F.3d at 164-65; Garcia-
Villeda, 531 F.3d at 150. Moreover, we must treat each petition for review as challenging only the
BIA decision from which it was timely filed. See Stone v. INS, 514 U.S. 386, 405 (1995); see also Ke
Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-91 (2d Cir. 2001). The BIA’s decision did not
review a challenge to Zheng’s underlying deportation proceedings; instead, it determined that the IJ
correctly found that the agency lacked jurisdiction to review Zheng’s motion to reopen pursuant to 8
U.S.C. § 1231(a)(5).

        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.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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