    09-1115-ag
    Zhisong v. Holder
                                                                                   BIA
                                                                               Chew, IJ
                                                                          A 072 783 606
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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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 23 rd day of June, two thousand ten.

    PRESENT:
             JOSÉ A. CABRANES,
             ROBERT A. KATZMANN,
             DEBRA ANN LIVINGSTON,
                      Circuit Judges.
    _______________________________________

    LIU ZHISONG,
             Petitioner,

                        v.                                 09-1115-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Sandra Greene, York, PA.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Terri J. Scadron, Assistant
                                  Director; Lauren Ritter, Law Clerk,
                                  Office of Immigration Litigation,
                                  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.

    Liu Zhisong, a native and citizen of the People’s

Republic of China, seeks review of a February 17, 2009,

order of the BIA affirming Immigration Judge (“IJ”) George

T. Chew’s November 24, 2008, denial of his motion to reopen.

In re Liu Zhisong, No. A 072 783 606 (B.I.A. Feb. 17, 2009),

aff’g No. A 072 783 606 (Immig. Ct. N.Y. City Nov. 24,

2008).   We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    We review the agency’s denial of Zhisong’s motion to

reopen for abuse of discretion.     Ali v. Gonzales, 448 F.3d

515, 517 (2d Cir. 2006).     An alien may only file one motion

to reopen and must do so within 90 days of the final

administrative decision.     8 U.S.C. § 1229a(c)(7); 8 C.F.R.

§ 1003.2(c)(2).     Although Zhisong’s motion was indisputably

untimely, there is no time or numerical limitation if the

alien establishes materially “changed country conditions

arising in the country of nationality.”     8 U.S.C.

§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).



                                2
    The BIA did not abuse its discretion in finding that

the birth of Zhisong’s two U.S. citizen children constituted

a change in his personal circumstances, rather than a change

in country conditions sufficient to excuse the untimely

filing of his motion to reopen.     See Wei Guang Wang v. BIA,

437 F.3d 270, 274 (2d Cir. 2006).     Moreover, although

Zhisong argues that “the landscape of the law applicable to

[his motion to reopen] has sufficiently shifted,” and that

“China’s application of its birth policies has shifted,” he

submitted no evidence of changed country conditions with his

motion.   See 8 C.F.R. § 1003.2(c)(1) (stating that “[a]

motion to reopen proceedings . . . shall be supported by

affidavits or other evidentiary material).

    The BIA also did not abuse its discretion in finding

that Zhisong was not prejudiced by the IJ’s failure to

address his argument that he had adjusted his status to that

of a lawful permanent resident.     See Garcia-Villeda v.

Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (holding that an

alien must establish that he was prejudiced by the alleged

error in order to prevail on a due process claim).     The BIA

properly found that Zhisong failed to submit evidence

sufficient to establish that he had adjusted his status,


                              3
because “[a]n approved visa petition is merely a preliminary

step in the visa application process,” and is therefore

insufficient, without more, to establish lawful permanent

residency. 1   See Firstland Intern., Inc. v. I.N.S., 377 F.3d

127, 129 n.3 (2d Cir. 2004) (internal citation omitted)

     Finally, the BIA did not abuse its discretion in

holding that Zhisong was also not prejudiced by the IJ’s

failure to address his claim that he was eligible for

cancellation of removal.    As the BIA found, Zhisong was

statutorily ineligible for that form of relief.    Removal

proceedings replaced deportation proceedings in immigration

cases commenced on or after April 1, 1997.    See Illegal

Immigration Reform and Immigrant Responsibility Act of 1996,

Division C of Pub. L. No. 104-208, 110 Stat. 3009-546

(enacted Sept. 30, 1996) (“IIRIRA”).    Because Zhisong’s

proceedings commenced prior to the IIRIRA’s effective date,

the provisions regarding cancellation of removal do not

apply to him.    See 8 U.S.C. § 1229b(b) (setting forth

eligibility requirements for cancellation of removal);

Escobar v. Holder, 567 F.3d 466, 475 (9th Cir. 2009) (“The



       1
        In his brief, Zhisong appears to concede that he
  lost his status when his father divorced.

                               4
possibility of cancellation only arises when removal

proceedings have been initiated.”); see also Delegation of

Authority to the Immigration and Naturalization Service to

Terminate Deportation Proceedings and Initiate Removal

Proceedings, 65 Fed. Reg. 71273, 71274 (proposed Nov. 30,

2000) (describing the administrative “repapering” procedure

whereby aliens in deportation proceedings rendered

ineligible for suspension of deportation by virtue of

IIRIRA’s retroactive stop-time rule could seek termination

of deportation proceedings and initiation of removal

proceedings in order to apply for cancellation of removal).

Instead, Zhisong was required to seek suspension of

deportation under 8 U.S.C. § 1254(a)(1) (repealed in 1996

with the enactment of IIRIRA), but failed to do so.     See

Arenas-Yepes v. Gonzales, 421 F.3d 111, 116-17 (2d Cir.

2005) (holding that because petitioner’s proceedings

commenced after the enactment of IIRIRA, petitioner was

statutorily ineligible for suspension of deportation).

    For the foregoing reasons, the petition for review is

DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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