                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2008

Zheng v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3252




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"Zheng v. Atty Gen USA" (2008). 2008 Decisions. Paper 1773.
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                                                         NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 06-3252


                              OIEN ZHIN ZHENG,

                                                  Petitioner

                                       v.

              ATTORNEY GENERAL OF THE UNITED STATES,

                                                  Respondent
                                _____________

                      On Petition for Review of a Decision
                      of the Board of Immigration Appeals
                           Agency No. A70-122-530
                      Immigration Judge: Annie S. Garcy
                                 ____________

                   Submitted Under Third Circuit L.A.R. 34.1(a)
                              on January 8, 2008
                                ____________

          Before: FISHER, HARDIMAN AND ALDISERT, Circuit Judges
                           (Filed: January 10, 2008)



                                   OPINION


ALDISERT, Circuit Judge
       Oien Zhin Zheng* seeks review of an order of the Board of Immigration Appeals

(“BIA”) denying his motion to reopen deportation proceedings. On November 3, 2004, an

immigration judge (“IJ”) denied Zheng’s application for asylum, withholding of removal

and relief under the Convention Against Torture. On January 9, 2006, the BIA affirmed

the IJ’s order. Zheng did not file a petition for review of that order in this Court. Zheng

filed a Motion to Reopen on April 5, 2006, which the BIA denied on June 5, 2006.

                                              I.

       We are not in a position to review the order of the BIA denying Zheng’s motion to

reopen. Under Rule 28, Federal Rules of Appellate Procedure, “the appellant is required

to list the issues raised on appeal and present an argument in support of them.” Nagle v.

Alspach, 8 F.3d 141, 143 (3d Cir. 1993). Pursuant to Rule 28, “the argument . . . must

contain . . . appellant’s contentions and the reasons for them . . . .” Rule 28(a)(9), Fed. R.

App. P. In his brief, Zheng failed to identify the BIA’s denial of his motion to reopen as

an issue in his statement of the issues presented and provided no written argument

regarding that denial. Accordingly, he has abandoned and waived the issue. Nagle, 8 F.3d

at 143 (“When an issue is either not set forth in the statement of issues presented or not

pursued in the argument section of the brief, the Appellant has abandoned and waived

that issue on appeal.”).


       *
          Petitioner’s name is given as “Oien Zhin Zheng” in the captions of the petition
for review, oral decision of the immigration judge, and Respondent’s brief to this Court.
It is given as “Qien Zhin Zheng” in the captions of the Board of Immigration Appeals’
denial of the motion to reopen and Petitioner’s brief to this Court.

                                               2
                                              II.

       In addition, we do not have jurisdiction over Zheng’s petition for review to the

extent he challenges the BIA’s January 9, 2006 order. Zheng did not file a timely petition

for review of the January 9, 2006 order. 8 U.S.C. § 1252(b)(1) (“The petition for review

must be filed not later than 30 days after the date of the final order of removal.”). Almost

two months after the time to file a petition for review of the January 9, 2006 order had

expired, Zheng filed a motion to reopen with the BIA. Zheng’s motion to reopen,

however, does not revive his period to appeal the BIA’s January 9, 2006 order. Garcia v.

INS, 690 F.2d 349, 350 (3d Cir. 1982) (“Timely filing as to one order does not vest this

Court with jurisdiction to hear ‘stale’ challenges.”).

       We have considered all contentions of the parties and conclude that no further

discussion is necessary.

       Accordingly, the petition for review will be denied.




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