     Case: 17-60605      Document: 00515069356         Page: 1    Date Filed: 08/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                    No. 17-60605                        August 8, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
JINGYU ZHONG,

                                                 Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                 Respondent


                        Petitions for Review of Orders of the
                           Board of Immigration Appeals
                               BIA No. A087 879 471


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In July 2010 the Department of Homeland Security (DHS) served Jingyu
Zhong, a native and citizen of the People’s Republic of China, with a notice to
appear. The DHS alleged, inter alia, that Zhong was removable as an alien
who had failed to maintain or comply with the conditions of the nonimmigrant
status under which he was admitted. Zhong filed an asylum application. He
subsequently filed a motion for a continuance with the Immigration Judge (IJ),


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-60605

informing the IJ that he had married a United States citizen and a Form I-130
visa petition had been filed on his behalf with the United States Citizenship
and Immigration Services (USCIS). He requested a continuance of proceedings
so that USCIS could adjudicate the visa petition and then, afterwards, seek
adjustment of status before the IJ.
      The IJ found that Zhong had waived the right to seek adjustment of
status by not raising the issue in a timely fashion. The IJ denied Zhong’s
motion for a continuance and also concluded that he was ineligible for asylum,
withholding of removal, and relief under the Convention Against Torture
(CAT). On August 3, 2017, the BIA dismissed Zhong’s appeal. Zhong filed a
motion to reopen, arguing, inter alia, that his attorney rendered ineffective
assistance regarding the relief of adjustment of status. On April 18, 2017, the
BIA denied reopening.
      Zhong filed timely petitions for review of both decisions of the BIA,
challenging the determination that he waived the right to pursue adjustment
of status, the denial of his motion for a continuance, and the determination
that counsel did not render ineffective assistance. He has also filed a motion
for a remand with this court, contending that his I-130 petition was approved
by USCIS during the pendency of the instant petitions for review and a remand
is warranted so that he may apply for adjustment of status.
      To the extent Zhong challenges the BIA’s August 3, 2017, dismissal of
his appeal of the IJ’s final order of removal, we review the order of the BIA and
will consider the underlying decision of the IJ only if it influenced the BIA’s
determination. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Upon
review, “[w]e accord deference to the BIA’s interpretation of immigration
statutes unless the record reveals compelling evidence that the BIA’s
interpretation is incorrect.” Id. We review the BIA’s factual findings for



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                                 No. 17-60605

substantial evidence and may not overturn those factual findings unless the
evidence compels a contrary conclusion. Id.
      Zhong does not challenge the denial of asylum, withholding of removal,
or CAT protection.    Such issues are therefore abandoned.         See Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). With reference to the BIA’s order
of August 3, 2017, Zhong challenges the determination that his failure to
inform the IJ of his pending I-130 petition in a timely fashion resulted in a
waiver of the right to pursue adjustment of status in the instant immigration
proceeding. As Zhong did not present to the BIA the argument that he now
presents to this court, he has failed to exhaust this issue, and we lack
jurisdiction to consider it.   See 8 U.S.C. § 1252(d)(1); Claudio v. Holder,
601 F.3d 316, 318 (5th Cir. 2010).
      Regarding the BIA’s affirmance of the IJ’s denial of Zhong’s motion for
continuance, the BIA correctly concluded that Matter of Hashmi, 24 I. & N.
Dec. 785, 789-90 (BIA 2009), is distinguishable. Unlike in the instant case, in
Hashmi, 24 I. & N. Dec. at 787-94, the alien had a pending I-130 petition and
there was no finding that he had waived the right to pursue adjustment of
status.   Moreover, even if the Hashmi factors are applied to the instant
proceeding, those factors do not suggest that the denial of Zhong’s motion to
continue was an abuse of discretion. See Hashmi, 24 I. & N. Dec. at 790-93;
Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008).
      To the extent Zhong challenges the BIA’s August 18, 2018, denial of his
motion to reopen, this court applies a “a highly deferential abuse-of-discretion
standard.”   Gomez-Palacios v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
“[M]otions to reopen deportation proceedings are disfavored, and the moving
party bears a heavy burden.” Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549
(5th Cir. 2006) (internal quotation marks and citation omitted).



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      Zhong’s argument that reopening was warranted due to his claim of
ineffective assistance of counsel lacks merit, as he has failed to demonstrate
that counsel’s performance resulted in prejudice.         See Diaz v. Sessions,
894 F.3d 222, 228 (5th Cir. 2018); Miranda-Lores v. INS, 17 F.3d 84, 85
(5th Cir. 1994).     Additionally, Zhong’s challenge to the BIA’s denial of
reopening based upon the denial of his motion for a continuance does not
demonstrate that the BIA’s denial of reopening was an abuse of discretion. See
Gomez-Palacios, 560 F.3d at 358.
      Finally, regarding the motion to remand, Zhong’s eligibility for
adjustment of status based upon the approved I-130 petition has not been
addressed by the IJ or BIA. Remand is therefore inappropriate, as Zhong must
raise the issue in a motion to reopen. See Kane v. Holder, 581 F.3d 231, 242
(5th Cir. 2009).
      PETITIONS FOR REVIEW DISMISSED IN PART FOR LACK OF
JURISDICTION; PETITIONS FOR REVIEW DENIED IN PART; MOTION
TO REMAND DENIED.




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