         12-1823
         Zhu v. Holder
                                                                                         BIA
                                                                                 A078 195 863
                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _________________________________________
12
13       JIAN WEI ZHU,
14                Petitioner,
15
16                       v.                                        12-1823
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Troy Nader Moslemi, New York, New
24                                      York.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Richard M. Evans, Assistant
28                                      Director; Virginia Lum, Trial
29                                      Attorney, Office of Immigration
30                                      Litigation, United States Department
31                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Petitioner Jian Wei Zhu, a native and citizen of the

 6   People’s Republic of China, seeks review of the April 17,

 7   2012 decision of the BIA denying his motion to reopen.        In

 8   re Jian Wei Zhu, No. A078 195 863 (B.I.A. Apr. 17, 2012).

 9   We assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.

11       The BIA’s denial of Zhu’s motion to reopen as untimely

12   and number barred was not an abuse of discretion.        See Kaur

13   v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).       An

14   alien may file one motion to reopen, generally no later than

15   90 days after the date on which the final administrative

16   decision was rendered in the proceedings sought to be

17   reopened.    8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

18   § 1003.2(c)(2).    There is no dispute that Zhu’s 2012 motion

19   was untimely, as his final administrative order was issued

20   in 2007, and he had previously filed two other motions to

21   reopen.     See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

22   § 1003.2(c)(2).    However, the time limitation does not apply


                                     2
 1   to a motion to reopen if it is “based on changed

 2   circumstances arising in the country of nationality . . . if

 3   such evidence is material and was not available and could

 4   not have been discovered or presented at the previous

 5   hearing.”   8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

 6   § 1229a(c)(7)(C)(ii).

 7       Here, the BIA did not abuse its discretion in declining

 8   to reopen Zhu’s proceedings because he failed to submit a

 9   new asylum application with his motion, and Zhu does not

10   challenge this dispositive finding in his brief to this

11   Court.   Pursuant to 8 C.F.R. § 1003.2(c)(1), “[a] motion to

12   reopen proceedings for the purpose of submitting an

13   application for relief must be accompanied by the

14   appropriate application for relief.”   The agency’s

15   interpretations of its own regulations are accorded

16   “substantial deference,” Joaquin-Porras v. Gonzales, 435

17   F.3d 172, 178 (2d Cir. 2006) (citations omitted), “unless it

18   is plainly erroneous or inconsistent with the regulation . .

19   . or inconsistent with the agency’s previous

20   interpretation,” Zhen Nan Lin v. U.S. Dep’t of Justice, 459

21   F.3d 255, 262 (2d Cir. 2006) (citations omitted).     Because

22   the plain language of 8 C.F.R. § 1003.2(c)(1) provides that


                                   3
 1   a motion to reopen “must be accompanied by the appropriate

 2   application for relief,” 8 C.F.R. § 1003.2(c)(1) (emphasis

 3   added), we do not conclude that the BIA erred by denying

 4   Zhu’s motion because he failed to file an asylum application

 5   based on his new religion claim.    See Joaquin-Porras, 435

 6   F.3d at 178.

 7       For the foregoing reasons, the petition for review is

 8   DENIED.   As we have completed our review, any stay of

 9   removal that the Court previously granted in this petition

10   is VACATED, and any pending motion for a stay of removal in

11   this petition is DISMISSED as moot. Any pending request for

12   oral argument in this petition is DENIED in accordance with

13   Federal Rule of Appellate Procedure 34(a)(2), and Second

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17




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