         09-3769-ag
         Zheng v. Holder
                                                                                           BIA
                                                                                   A077 776 954
                                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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of May, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROBERT A. KATZMANN,
 9                BARRINGTON D. PARKER,
10                        Circuit Judges.
11       _______________________________________
12
13       CHI FENG ZHENG,
14                Petitioner,
15
16                         v.                                     09-3769-ag
17                                                                NAC
18
19       ERIC H. HOLDER, Jr., U.S. ATTORNEY
20       GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Peter L. Quan, New York, New York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General, Linda S. Wernery, Assistant
28                                       Director, James E. Grimes, Senior
29                                       Litigation Counsel, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       of Justice, Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    review is DENIED.

5        Petitioner Chi Feng Zheng, a native and citizen of the

6    People’s Republic of China, seeks review of an August 13,

7    2009, order of the BIA denying his motion to reopen his

8    removal proceedings.     In re Chi Feng Zheng, No. A077 776 954

9    (B.I.A. Aug. 13, 2009).     We assume the parties’ familiarity

10   with the underlying facts and procedural history of the

11   case.

12       We review the BIA’s denial of a motion to reopen for

13   abuse of discretion.     See Ali v. Gonzales, 448 F.3d 515, 517

14   (2d Cir. 2006).     An alien who has been ordered removed may

15   file one motion to reopen, but must do so within 90 days of

16   the final administrative decision.     8 U.S.C. § 1229a(c)(7).

17   Here, it is beyond dispute that Zheng’s motion to reopen was

18   untimely.

19       The 90-day filing deadline may be excused if the alien

20   can establish “changed country conditions arising in the

21   country of nationality . . . .”     8 U.S.C.

22   § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).     The BIA



                                     2
1    reasonably concluded, however, that the evidence Zheng

2    submitted, a notice purportedly sent to him by the Chinese

3    government, “[did] not establish     . . . that the government

4    now is motivated to persecute [him] for a new reason.”           See

5    Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.

6    2008).   Indeed, the notice did not reveal a change in

7    country conditions, but merely supported the same claim that

8    Zheng had asserted before the IJ.

9        Furthermore, the BIA did not abuse its discretion by

10   denying Zheng’s motion to reopen based on a pending I-130

11   visa petition filed on his behalf.     As the BIA found,

12   eligibility to adjust status is not a statutory basis for

13   excusing the untimely filing of a motion to reopen.        See

14   8 U.S.C. § 1229a(c)(7)(C)(ii).     Thus, when an alien seeks

15   reopening in an untimely motion on the basis that he is

16   eligible to adjust his status, he is invoking the BIA’s

17   authority to reopen proceedings sua sponte.     8 C.F.R.

18   § 1003.2(a); Mahmood v. Holder, 570 F.3d 466, 470-71 (2d

19   Cir. 2009).   The BIA’s determination as to whether it will

20   exercise that authority is entirely discretionary and thus

21   beyond the scope of this Court’s jurisdiction.     See Ali v.

22   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).     Cf. Mahmood,

23   570 F.3d at 470-71.


                                   3
1        Because Zheng did not demonstrate changed country

2    conditions, the BIA did not abuse its discretion in denying

3    his motion.    Yuen Jin v. Mukasey, 538 F.3d 143, 156 (2d Cir.

4    2008).    Accordingly, we need not reach his argument that he

5    is prima facie eligible for relief.    See 8 U.S.C.

6    § 1229a(c)(7)(C)(ii).

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
16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19




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