    08-5041-ag
    Zhen v. Holder
                                                                                   BIA
                                                                           A072 460 484
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


         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 21 st day of December, two thousand                nine.

    PRESENT:
             HON. DENNIS JACOBS,
                           Chief Judge,
             HON. ROGER J. MINER,
             HON. REENA RAGGI,
                           Circuit Judges.
    _________________________________________

    CHO-PING ZHEN,
             Petitioner,

                     v.                                    08-5041-ag
                                                           NAC
    ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
             Respondent.
    _________________________________________



                 *
             Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr. is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
FOR PETITIONER:                Theodore N. Cox, New York, New York.

FOR RESPONDENTS:               Tony West, Assistant Attorney
                               General, Civil Division, Michelle
                               Gorden Latour, Assistant Director,
                               Brendan P. Hogan, Attorney, Office
                               of Immigration Litigation, U.S.
                               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.

     Cho-Ping      Zhen,   a   native       and   citizen   of    the   People’s

Republic of China, seeks review of a September 23, 2008 order

of the BIA denying his motion to reopen.               In re Cho-Ping Zhen,

No. A072 460 484 (B.I.A. Sept. 23, 2008).                        We assume the

parties’ familiarity with the underlying facts and procedural

history of the case.

     Reviewing for abuse of discretion, see Kaur v. BIA, 413

F.3d 232, 233 (2d Cir. 2005) (per curiam), we conclude that

the BIA did not abuse its discretion in denying Zhen’s motion

to reopen.       With certain exceptions not applicable here, see

8   C.F.R.   §    1003.2(c)(3),     federal        regulations      permit    an

individual to file only one motion to reopen, and require that

the motion be filed within ninety days of a final agency


                                        2
order, see 8 C.F.R. § 1003.2(c)(2).                 Zhen’s second motion to

reopen, filed more than six years after the BIA’s final order

of exclusion, is both number-barred and untimely.

     Zhen     argues    that    the      BIA   should   have   reopened       his

proceedings      pursuant      to   an    interim    rule   adopted     by    the

Attorney General allowing “arriving aliens” placed in removal

proceedings to apply for adjustment of status with the United

States Citizenship and Immigration Services (“USCIS”).                     See 71

Fed. Reg. 27,585, at 27,588 (May 12, 2006).                 Citing Sheng Gao

Ni v. BIA, 520 F.3d 125 (2d Cir. 2008), Zhen asserts that the

BIA’s   denial    of    his   motion     to    reopen   exposes   him   to    the

enforcement of his deportation order and thus renders the

interim rule worthless.

     Zhen’s reliance on Sheng Gao Ni is misplaced, as that

case involved petitioners seeking review of the BIA’s denial

of   timely      motions       to   reopen.          Petitioners      in     such

circumstances are not required to meet any exception to the

time and    numerical limitations on motions to reopen.                        In

contrast, as noted above, Zhen’s motion was both untimely and

number-barred.         Thus, we find no abuse of discretion in the

BIA’s denial of his motion.              See 8 C.F.R. § 1003.2(c)(2).

     We lack jurisdiction to review the BIA’s decision not to


                                         3
reopen    Zhen’s   proceedings    sua         sponte   under   8   C.F.R.   §

1003.2(a).     Such   a   decision       is   “entirely   discretionary.”

Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).

    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. 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


                                 By:____________________________




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