                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-18-2009

Zhou v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4086




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-4086
                                      ___________

                                   GUO QIN ZHOU,
                                                       Petitioner,
                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                         On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                                Agency No. A70-905-027
                         Immigration Judge: Donald V. Ferlise
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 18, 2009

            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                            Opinion filed: February 18, 2009

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Petitioner Guo Qin Zhou, a native and citizen of China, arrived in the United

States without a valid visa in 1992. On May 4, 1993, Zhou filed an application for

asylum and withholding of removal, alleging persecution on the basis of political opinion,
that is, his opposition to China’s population control policies. On May 7, 1997, the former

Immigration and Naturalization Service served Zhou with a Notice to Appear, charging

that he was removable under Immigration & Nationality Act (“INA”) § 212(a)(6)(A)(i), 8

U.S.C. § 1182 (a)(6)(A)(i), as an alien who was present in the United States without being

admitted or paroled. Zhou admitted the allegations in the Notice to Appear and was

found removable as charged. The Immigration Judge conducted a merits hearing on

Zhou’s asylum application on February 9, 2001 and denied it. Zhou appealed, but the

Board of Immigration Appeals adopted and affirmed the IJ’s decision on October 25,

2002. Thus, Zhou’s order of removal to China was final on October 25, 2002.

       On May 21, 2007, Zhou filed a motion to reopen with the Board, seeking

reopening (or termination) so that he could adjust his status based on an approved I-140

employment-based immigrant petition. Zhou contended that he was eligible to adjust his

status pursuant to INA § 245(i), and that Matter of Velarde, 23 I. & N. Dec. 253 (BIA

2002), should apply to employment-based visa petitions. 1 Zhou attached to his motion to

reopen an I-97 Notice of Action indicating that his petition had been approved with a

priority date of July 12, 2006. A.R. 15-32. The government opposed the motion on the

ground that it was time-barred, and Zhou had failed to establish prima facie eligibility for




  1
    Matter of Velarde held that a motion to reopen seeking adjustment of status based on
a marriage entered into after removal proceedings began may be granted notwithstanding
the pendency of a visa petition filed on the alien’s behalf if certain conditions are met.
One of those conditions is that the motion be timely filed. 23 I. & N. Dec. at 256.

                                             2
adjustment of status because he had shown neither that he was in valid legal status nor

that his labor certification was filed on or before April 30, 2001. A.R. 3.2

       On September 28, 2007, the Board denied the motion to reopen on the ground that

it was untimely filed under 8 C.F.R. § 1003.2(c)(2). The Board went on to consider

whether it would grant the motion to reopen under its sua sponte authority, 8 C.F.R. §

1003.2(a), and concluded that it would not because “[b]ecoming eligible (or potentially

eligible) for relief after the time period allowed for filing a motion to reopen has elapsed

is not in itself an ‘exceptional’ circumstance’....” Zhou has timely petitioned for review.

       We will deny the petition for review. We review the Board’s September 28, 2007

decision to deny the motion to reopen under an abuse of discretion standard. See Borges

v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005). A Board decision “will not be disturbed

unless ... found to be arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d

556, 562 (3d Cir. 2004). Under 8 C.F.R. § 1003.2(c)(2), a party may file a motion to

reopen with the Board “no later than 90 days after the date on which the final

administrative decision was rendered in the proceeding sought to be reopened.” Thus, an

alien has ninety days from the date of the Board’s final decision in which to file a motion



  2
    An alien who is seeking to take advantage of INA § 245(i) must be the beneficiary of
a visa petition filed on his behalf prior to April 30, 2001, and the visa petition must be
approvable when filed. INA § 245(i)(1)(B)(i), 8 U.S.C. § 1255(i)(1)(B)(i). In his brief on
appeal, Zhou asserted that he is a beneficiary of a labor certification filed before April 30,
2001, but nothing in the Administrative Record, including his motion to reopen,
documents this assertion. Our decision to deny the petition for review on the basis of the
untimely motion to reopen does not require us to resolve this factual dispute.

                                              3
to reopen. 8 C.F.R. § 1003.2(c)(2). It is undisputed that Zhou’s motion to reopen was

filed beyond the ninety-day deadline. None of the exceptions listed in subparagraph

(c)(3) (for asylum applications based on changed country circumstances, motions to

reopen orders entered in absentia, or joint motions, for example) apply to his case. 8

C.F.R. § 1003.2(c)(3).

         The Board has sua sponte authority to reopen proceedings despite the untimeliness

of the motion, “as an extraordinary remedy reserved for truly exceptional situations.” In

re: G-D-, 22 I. & N. Dec. 1132, 1134 (BIA 1999). “Because the [Board] retains

unfettered discretion to decline to sua sponte reopen or reconsider a deportation

proceeding, this court is without jurisdiction to review a decision declining to exercise

such discretion to reopen or reconsider [a] case.” Calle-Vujiles v. Ashcroft, 320 F.3d

472, 475 (3d Cir. 2003). The Board has this unfettered discretion because “[t]here are no

guidelines or standards which dictate how and when the [Board] should invoke its sua

sponte power.” Luis v. Immigration & Naturalization Serv., 196 F.3d 36, 41 (1st Cir.

1999).

         Accordingly, notwithstanding Zhou’s argument that his recently obtained

eligibility for adjustment of status is real and an “exceptional circumstance,” we do not

have jurisdiction to review the Board’s decision not to sua sponte reopen his removal

proceedings, where, as here, the Board declined to reopen in an exercise of its unfettered

discretion. See Cruz v. U.S. Att'y Gen., 452 F.3d 240, 250 (3d Cir. 2006).



                                             4
       Finally, we reject as unpersuasive Zhou’s argument that the Board was required to

address explicitly each argument that he presented in his motion to reopen in order to

justify its denial of his motion. The Board’s citations and discussion show sufficiently

that it comprehended and addressed the straightforward issues presented by Zhou’s

untimely motion to reopen.

       For the foregoing reasons, we will deny the petition for review.




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