                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0695n.06
                                                                                             FILED
                                             No. 11-3583
                                                                                        Jun 29, 2012
                           UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

WEI ZHENG,

        Petitioner,

v.                                                      ON PETITION FOR REVIEW FROM
                                                        THE BOARD OF IMMIGRATION
ERIC H. HOLDER JR., Attorney General,                   APPEALS

        Respondent.

                                                 /




BEFORE:         DAUGHTREY and CLAY, Circuit Judges; CLELAND, District Judge.*

        CLAY, Circuit Judge. Petitioner Wei Zheng, a native and citizen of China, petitions for

review the decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) order to deny Petitioner’s application for adjustment of status. For the reasons set forth below,

we dismiss for lack of jurisdiction Petitioner’s request for adjustment of status and DENY the

petition for review.

                                          BACKGROUND

        Petitioner is a thirty-seven year old male and is a native citizen of China. He currently

operates two restaurants in the Toledo, Ohio area. Petitioner entered the United States on a B-2 visa


        *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
                                            No. 11-3583

from Hong Kong on July 28, 1991. Petitioner’s mother had someone file an application for status

on his behalf under the Chinese Student Protection Act in 1991. Petitioner claimed that he was a

participant in the 1989 democracy demonstrations in China and shortly after sought asylum in the

United States. These same individuals also prepared false documents to help Petitioner obtain a

work permit in the United States. Petitioner stated on the application that his date of entry into the

United States was August 13, 1989. The INA granted Petitioner a work permit but later denied his

application for status after it was discovered that Petitioner entered the United States without

inspection.

       Nonetheless, Petitioner remained in the United States and graduated from high school in

1993 and then went to work at his mother’s restaurant. In 1994, Petitioner had someone file on his

behalf an asylum application. Petitioner claimed that he signed the asylum application but never

read the document. During this time, Petitioner’s work permit expired and he was issued a new one

and continued working at the restaurant. On August 8, 1995, Petitioner was issued an Order to Show

Cause by the INS asylum office, and his case was referred to the New York Immigration Court.

       A.      New York IJ Decision

       On February 26, 1996, the New York IJ conducted a hearing on Petitioner’s application for

asylum. Petitioner admitted to the factual allegations in the Order to Show Cause and conceded

removal. The IJ issued a decision denying Petitioner’s application based on an adverse credibility

finding and granted voluntary departure until September 26, 1996. Petitioner did not leave the

United States and instead filed an appeal to the BIA on March 7, 1996.




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       Prior to the BIA’s review of the IJ’s decision, Petitioner filed a motion to the BIA requesting

a remand of his case to the IJ and to suspend his deportation in order to join his mother’s application

for deportation that was also pending. The BIA granted Petitioner’s request. On March 10, 1997,

the IJ issued an oral decision denying Petitioner’s application to suspend his deportation. Petitioner

did not appeal.

           On February 7, 2007, Petitioner married his wife Chun Hua Zhang, a U.S. citizen, and

together they have two children.1 Petitioner’s wife filed an I-130 visa petition with the Department

of Homeland Security (“DHS”) on behalf of her husband. Petitioner’s wife stated on the application

that Petitioner entered the United States on July 28, 1991 with a B-2 visitor visa that expired on

January 27, 1992. DHS approved the visa petition in May 2007.

       Petitioner filed a motion to reopen with the New York Immigration Court in August 2007

to apply for an adjustment of status under 8 U.S.C. § 1255. In his application for adjustment of

status, Petitioner submitted a personal affidavit, his approved I-130 visa petition and other

documents. The IJ granted the petition on November 9, 2007. The case was transferred to the

Cleveland Immigration Court after DHS requested a change of venue based on Petitioner’s Ohio

address.

       On April 24, 2008, Petitioner appeared pro se before the IJ. At the hearing, Petitioner

requested that his case be transferred back to New York because his home address was in Brooklyn




       1
        It is unclear from the record what happened between the time the New York IJ issued the
oral decision denying Petitioner’s application to suspend his deportation in 1997 and the time
Petitioner applied for an adjustment of status in 2007.

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                                           No. 11-3583

New York and he had been living in New York for the past two years. DHS objected to Petitioner’s

change of venue request, and the IJ agreed.



       B.      Cleveland IJ Hearing

       Petitioner appeared with counsel at a subsequent hearing before the Cleveland Immigration

Court on February 23, 2009. During the IJ hearing, Petitioner made a number of inconsistent

statements and admitted that he filed a fraudulent application to obtain a work permit and also

submitted falsified documents in his asylum application. Initially, Petitioner stated that his home

address was in Brooklyn, New York but later clarified that his permanent home was in Ohio. He

further claimed that he only lived in New York four to five months out of the year and last visited

three months prior to the hearing. Petitioner also confirmed that he made a number of false

statements on his immigration applications and lied to a number of immigration officials. Petitioner

testified that he filed a fraudulent application for relief under the Chinese Student Protect Act in

1991. Petitioner further stated that he provided two fraudulent documents at his asylum interview

in 1995 and that he also lied about his involvement in the 1989 student democracy movement in

China. Petitioner also admitted that he submitted a fraudulent work permit application. Finally,

Petitioner admitted that he lied under oath at his New York immigration proceedings and also lied

to an INS asylum officer.

       On March, 19, 2009, Petitioner filed a motion to reopen the record to admit new evidence

and to reopen testimony for new evidence. Petitioner stated in his motion that the new evidence is

critical to establish his credibility and the new evidence further supported his claim of extreme


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hardship should he be removed. The IJ denied Petition’s motion to reopen the record and to reopen

testimony on March 26, 2009.



       C.      The IJ Decision

       Petitioner’s hearing for adjustment of status and removal with the IJ was held on April 20,

2009. The IJ found Petitioner incredible based on a number of inconsistent and false statements.

Through the course of the hearing, the IJ determined that Petitioner did not reside in New York but

in Ohio and therefore denied Petitioner’s request to transfer venue to the New York Immigration

Court. During the hearing, Petitioner clarified that he actually lives with his wife and children in

Toledo, Ohio and only goes to New York periodically for business and to visit his mother.

       In addition, the IJ determined that Petitioner did not enter the United States with a valid B1

visa. Petitioner testified during the IJ hearing that he entered the United States on a B1 visa on July

28, 1991. To support his claim, Petitioner submitted a copy of an I-94 card that he received upon

entering New York at JFK Airport. The IJ questioned whether Petitioner actually obtained the I-94

card after he acknowledged that individuals prepared fraudulent documents on his behalf that were

submitted with various applications in order to obtain authorization to stay in the United States.

Initially, Petitioner claimed that he signed the documents without reading them, but it was later

determined that by the time the applications were filed, Petitioner was proficient in English. The IJ

determined that Petitioner did not enter the U.S. on a valid B1 visa. The IJ further determined that

Petitioner’s asylum application contained false statements and was supported by fabricated

documents.


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       Finally, the IJ found that Petitioner’s witnesses also had major holes in their testimony. The

IJ heard testimony from Petitioner’s mother, Mei Yu Hong, Petitioner’s wife, Chun Hua Zhang, and

Petitioner’s brother, Yan Zheng, who each testified that they would experience extreme hardship

should Petitioner be removed to China. Petitioner’s wife testified that she suffers from a heart

condition and also has a history of mental illness. She also stated that the revenue from Petitioner’s

restaurants serves as her primary source of income. She also testified that she attempted suicide in

2002 during her previous marriage and as a result sought counseling. However, the IJ noted that

Petitioner’s wife only attended counseling sessions for four months and was currently not receiving

any counseling. Petitioner’s mother testified that she has cancer and that she was dependent on her

son’s care. She also stated that Petitioner lives with her in Brooklyn, New York. However, when

the IJ asked Petitioner’s mother about Petitioner’s previous statement that he lives in Ohio, she

became “agitated and flustered.” The IJ also doubted Petitioner’s mother’s credibility after she

initially testified that she had stomach cancer in 2005 but then had difficultly explaining the current

state of her cancer. The mother finally conceded that her cancer was in remission since her surgery

in 2005 and that she was well enough to travel to China in 2007 for a five-month visit.

       Petitioner’s brother also testified that he works with Petitioner at one of his restaurants. The

IJ found Petitioner’s brother more credible than Petitioner and his mother but the IJ ultimately

concluded that Petitioner’s brother was not a credible witness after he could not find any

documentation that supported Petitioner’s brother’s claim that he was briefly hospitalized after a

suicide attempt in 2001.




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                                            No. 11-3583

       The IJ determined that Petitioner did not demonstrate that his removal “would result in

extreme hardship to either his United States citizen wife, or his lawful permanent resident mother,

or both.” (AR 211.) The IJ was also not persuaded by Petitioner’s brother’s explanation that it would

not be possible to hire someone else to manage the restaurant in Petitioner’s absence. The IJ noted

that Petitioner’s brother failed to explain why a manager could not be hired to oversee the restaurant.

In addition, the IJ could not find any evidence to support Petitioner’s mother’s claim that she

required Petitioner to attend her monthly medical check-ups. The IJ did not find any evidence in the

record to show that Petitioner’s wife could not participate in Petitioner’s restaurant business in his

absence. The IJ also noted that Petitioner’s restaurant business was not the only source of financial

support for his family as Petitioner’s wife was employed as a waitress as recently as 2008. The IJ

also found that Petitioner’s wife and family could be supported by his real estate investments, which

have a net value of $174, 600. The IJ determined that this money could be converted into cash to

support his family.

       In addition, the IJ considered Petitioner’s fraudulent documents that supported his various

applications and determined that the “fraud and misrepresentation are long-standing, repeated,

knowing, and intentional.” (Id. at 214.) The IJ found Petitioner’s conduct “so egregious that they

easily . . . outweigh positive factors that would mitigate in favor of granting a waiver of

inadmissibility.” (Id. at 215.)

          The IJ issued a written decision denying Petitioner’s application for adjustment of status

and a waiver of inadmissibility under section 212(I) of the Immigration and Nationality, 8 U.S.C §

1182(I). Petitioner appealed the IJ’s decision on November 17, 2009.


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       D.      The BIA Decision

       The BIA affirmed the IJ’s decision on May 6, 2011. First the BIA found that the IJ’s adverse

credibility finding was not clearly erroneous. The BIA noted that Petitioner provided inconsistent

responses concerning his place of residence. Petitioner initially testified during the IJ hearing that

he lived in New York and then later testified that he actually lives in Ohio and only “occasionally

travels to New York.” (BIA Decision 1.) In his appeal to the BIA, however, Petitioner stated that he

only resided in New York for approximately four to five months in 2008. In addition, the BIA noted

that Petitioner filed a false claim under the Chinese Student Protection Act and also a false

application for adjustment of status.

       Second, the BIA agreed with the IJ’s determination that Petitioner failed to demonstrate

eligibility for adjustment of status under 8 U.S.C. § 1255(a). The BIA found that Petitioner failed

to provide adequate documentary support to prove that he was inspected and admitted into the

United States. The BIA considered Petitioner’s history of submitting fraudulent documents to

immigration authorities as well as his lack of credibility during the IJ hearing in affirming the IJ’s

decision to deny his request for adjustment of status.

       Finally, the BIA affirmed the IJ’s finding that Petitioner’s “repeated dishonesty in

immigration proceedings” outweighed the favorable discretionary factors presented, including his

long residence, family ties, and his business ownership, and therefore denied Petitioner’s adjustment

of status as a matter of discretion. (BIA Decision 2.)

       Petitioner filed a motion to stay removal to this Court on September 9, 2011 and also timely

filed this petition for review. A panel of this Court denied the motion to stay removal.


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                                           No. 11-3583

                                          DISCUSSION

       I.      Adjustment of Status

       As an initial matter, we must determine whether we have jurisdiction to review the BIA’s

denial of Petitioner’s application for adjustment of status. We review “the existence of subject

matter jurisdiction de novo.” Abu-Khaliel v. Gonzales, 436 F.3d 627, 630 (6th Cir. 2006). “The

party opposing dismissal has the burden of proving subject matter jurisdiction.” GTE North, Inc. v.

Strand, 209 F.3d 309, 915 (6th Cir. 2000 ), cert denied, 531 U.S. 951 (2000).

       Petitioner argues that we have jurisdiction over his adjustment of status claim because the

BIA made a non-discretionary determination to deny his application for adjustment of status.

       Under 8 U.S.C. § 1252(a)(2)(B), we are precluded from reviewing “any judgment regarding

the granting of relief under . . [8 U.S.C. §1255]" or “any other decision or action of the Attorney

General or the Secretary of Homeland Security” that is discretionary.2 Id.

       Although we generally lack jurisdiction to review the discretionary denial of an adjustment

of status application, see 8 U.S.C. § 1252(a)(2)(B), we may retain jurisdiction to review

constitutional claims or questions of law, including the issue of whether a Petitioner is statutorily

eligible for adjustment of status. See 8 U.S.C. § 1252(a)(2)(D). In this case, the BIA affirmed the

IJ’s discretionary denial of Petitioner’s application for adjustment of status. The BIA considered

both the positive and negative factors prior to denying Petitioner’s application. The BIA determined



       2
        The Real ID Act applies in the instant case since the IJ issued its decision after May 11,
2005. Nonetheless, the amendments to the Act still preclude courts from reviewing
administrative decisions made discretionary by the statute. See Kucana v. Holder, 558 U.S. ___,
130 S. Ct. 827, 831 n.1 (2010).

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                                            No. 11-3583

that Petitioner’s negative factors—the fraud and misrepresentation contained in Petitioner’s

application—outweighed the credible testimony from some of Petitioner’s witnesses and the

possibility of hardship should Petitioner be removed. The BIA concluded that Petitioner’s long-

standing history of intentionally misleading the immigration courts was so egregious that they easily

outweighed the positive factors. Because the BIA’s decision to deny Petitioner’s adjustment of

status application was discretionary and not based on statutory construction, we do not have

jurisdiction to review the BIA’s findings. Johns v. Holder, 678 F.3d, 404, 406 (6th Cir. 2012)

(noting that arguments that challenge “the Board’s assessment of the weight and credibility of the

evidence [are] matters that the statute commits to the Attorney General’s ‘sole discretion’”); see also

Almuthaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (stating that since Petitioner’s “claim

relies on contesting . . .    factual determinations rather than on statutory construction or a

constitutional claim, we are without jurisdiction to review the BIA’s determination denying her

asylum.”). Therefore, the BIA’s discretionary reasons to deny Petitioner’s adjustment of status

application precludes our review of this claim.

        Petitioner mistakenly relies upon our decision in Aburto-Rocha v. Mukasey to support his

argument. 535 F.3d 500 (6th Cir. 2008). In Aburto-Rocha we identified two exceptions to the

jurisdictional bar under § 1252(a)(2)(B)(I). Under the first exception, we are permitted to “review

constitutional claims or questions of law.” Id. at 502. The second exception “prevents us from

reexamining only discretionary decisions by the agency.” Id. Petitioner contends that we have

jurisdiction because “non-discretionary decisions . . . are within our purview, even where they




                                                  10
                                             No. 11-3583

‘underlie determinations that are ultimately discretionary.”’ Id. at 502. (quoting Bileke-Tolosa v.

Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004).

         In Aburto-Rocha, we had jurisdiction to review Petitioner’s claims because the BIA

committed a legal error by failing to follow its own binding precedent before denying Aburto-

Rocha’s application for cancellation of removal. Id. at 503. We characterized the BIA’s decision

to ignore its own precedent as a “non-discretionary act” because it involved the review of legal

errors. In this case, Petitioner does not provide any evidence that the BIA committed legal errors or

failed to follow its own precedents in its decision to deny Petitioner’s application for adjustment of

status. See Reyes v. Holder, 410 F.App’x 935, 940 (6th Cir. 2011) (finding that the Aburto-Rocha

exception did not apply because petitioner did “not allege that the BIA ignored precedent when

making the hardship determination in relation to Maria’s request for cancellation of removal”).

Contrary to Petitioner’s argument, the BIA’s decision was discretionary in nature and based on

factual findings by the IJ. The IJ stated in its oral decision that his findings were based on

discretionary factors including a review of “positive factors, such as family ties, length of residency,

and hardship” as well as Petitioner’s negative factors, including the adverse credibility finding and

the fact that he repeatedly lied to immigration officials. (AR 203.) The BIA affirmed the IJ’s

discretionary denial of Petitioner’s application for adjustment of status. Because we conclude that

Petitioner seeks review of a discretionary decision, we accordingly lack jurisdiction to review this

claim.

         II.    Request to Admit New Evidence




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                                            No. 11-3583

       Petitioner also argues that the IJ erroneously denied Petitioner’s motion to admit additional

evidence and testimony. Petitioner contends that the new evidence was relevant and material and

supported his application for adjustment of status and furthermore, counsel never requested the

proffered evidence.

       As an initial matter, there is no evidence in the record that Petitioner raised this issue on

appeal to the BIA. Petitioner’s brief also does not address whether he raised this issue to the BIA.

“[T]o the extent that [a petitioner] has failed to exhaust his administrative remedies with respect to

certain claims, this court does not have jurisdiction to address those claims.” Ramani v. Ashcroft,

378 F.3d 554, 558 (6th Cir. 2006).

       Even assuming that Petitioner exhausted his administrative remedies, the record does not

compel us to conclude that the IJ’s decision to deny Petitioner’s motion was erroneous. In its order

denying Petitioner’s motion to reopen the record, the IJ explained that “the parties had adequate

opportunity to present all pertinent evidence in this matter” and a further delay would disrupt the

evidentiary hearing process. The additional evidence that Petitioner requested did not go to the heart

of Petitioner’s claim that he was entitled to an adjustment of status. Rather, the new evidence

included medical records of his wife and his mother, which was immaterial and does not rebut the

IJ’s adverse credibility finding. See Ilic-Lee v. Mukasey, 507 F.3d 1044, 1049–50 (6th Cir. 2007)

(BIA denied the motion to reopen because “the petitioner submitted ‘minimal and insufficient’

documentation to establish the bona fides of her marriage”). Moreover, even if the IJ was to

consider the new evidence, it would not overcome Petitioner’s general lack of credibility. Therefore,

we affirm the IJ’s decision to deny Petitioner’s request to submit additional evidence.


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                                            No. 11-3583

                                          CONCLUSION

       For the foregoing reasons, we dismiss for lack of jurisdiction Petitioner’s adjustment of status

claim because the BIA denied the application as a matter of discretion and Petitioner did not raise

any constitutional issues or a questions of law. We also affirm the IJ’s denial of Petitioner’s motion

to submit additional evidence.

       For these reasons we DENY the petition for review.




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