    09-1669-ag
    Zhou v. Holder
                                                                                  BIA
                                                                          A095 708 744
                      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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 3 rd day of March, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             RICHARD C. WESLEY,
                   Circuit Judges.
    ______________________________________

    MIAO ZHOU,
             Petitioner,
                                                           09-1669-ag
                     v.                                    NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:               Fuhao Yang, New York, New York.

    FOR RESPONDENT:               Michael F. Hertz, Assistant Attorney
                                  General; Blair T. O’Connor,
                                  Assistant Director; Samia Naseem,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Miao Zhou, a native and citizen of the People’s

Republic of China, seeks review of a March 23, 2009 order of

the BIA denying his motion to reopen as untimely filed.        In

re Miao Zhou, No. A095 708 744 (B.I.A. Mar. 23, 2009).        We

review the denial of a motion to reopen immigration

proceedings for abuse of discretion.      See Ali v. Gonzales,

448 F.3d 515, 517 (2d Cir. 2006).     In doing so here, we

assume the parties’ familiarity with the underlying facts

and procedural history of the case.

    A motion to reopen must generally be filed no later

than 90 days after the date on which the final

administrative decision was rendered in the proceedings

sought to be reopened.   8 C.F.R. § 1003.2(c)(2).

Zhou does not contest that he filed his petition after the

90-day deadline had passed.   Rather, he argues that the

BIA’s denial of his motion to reopen was “contrary to law”

because, as an “arriving alien,” he should have been allowed

to apply for adjustment of status on account of his marriage

to a U.S. citizen.   Pet’r’s Br. at 10.     The argument is


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without merit.    As the government correctly contends, the

United States Citizenship and Immigration Services, not the

BIA, has jurisdiction to adjudicate the adjustment-of-status

application of an “arriving alien.”    See Matter of Yauri, 25

I. & N. Dec. 103, 107 (B.I.A. 2009); see also Sheng Gao Ni

v. BIA, 520 F.3d 125, 129 (2d Cir. 2008).

    Zhou’s reliance on the “changed circumstances”

exception set forth at 8 U.S.C. § 1158(a)(2)(D) is also

unavailing, as that provision has no bearing on motions to

reopen.   See Yuen Jin v. Mukasey, 538 F.3d 143, 151-52 (2d

Cir. 2008).    The BIA correctly concluded that Zhou did not

meet an exception to the filing deadline applicable to his

motion.   See 8 U.S.C. § 1229a(c)(7)(C)(ii).   Thus, it did

not abuse its discretion in denying Zhou’s motion to reopen

as untimely.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, any pending motion

for a stay of removal in this petition is DISMISSED as moot.

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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