09-4255-ag
Zheng v. Holder
                                                                                BIA
                                                                        A070 907 042
                   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.


     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 8 th day of July, two thousand ten.

PRESENT:
         JON O. NEWMAN,
         GUIDO CALABRESI,
         JOSÉ A. CABRANES,
              Circuit Judges.
___________________________________

HUA RUI ZHENG,
         Petitioner,

                  v.                                               09-4255-ag
                                                                          NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
___________________________________

FOR PETITIONER:                G. Victoria Calle, New York, New York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Jennifer Levings, Senior Litigation
                               Counsel;   Carmel   A.   Morgan,  Trial
                               Attorney,    Office    of   Immigration
                               Litigation, United States Department
                               of Justice, Washington, D.C.

         UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Petitioner Hua Rui Zheng, a native and citizen of the

People’s Republic of China, seeks review of the September 17,

2009, order of the BIA denying his motion to reopen.     In re

Hua Rui Zheng, No. A070 907 042 (B.I.A. Sept. 17, 2009).     We

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

discretion.   See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.

2006).   We assume the parties’ familiarity with the underlying

facts and procedural history of the case.

    The BIA did not abuse its discretion in denying Zheng’s

motion to reopen as untimely and number-barred.     See Ali v.

Gonzales, 448 F.3d 515, 517 (2d Cir. 2006).        A motion to

reopen must generally be filed no later than 90 days after the

date on which the final administrative decision was rendered

in the proceedings sought to be reopened and only one such

motion may be filed.    8 C.F.R. § 1003.2(c)(2).   There is no

dispute that Zheng’s second motion to reopen, filed in March

2009, was numerically barred and untimely.    See id.

    Zheng’s argument that a change in applicable law excused

the untimely filing of his motion, in reliance on 8 C.F.R.


                              -2-
§ 1208.4(a)(4)(i), is misplaced, insofar as that provision has

no bearing on motions to reopen.                 See Yuen Jin v. Mukasey, 538

F.3d 143, 151-52 (2d Cir. 2008).                 Similarly, Zheng’s citation

to Pedreros v. Keisler, 503 F.3d 162, 165 (2d Cir. 2007), is

inapposite     because,       in    that    case,      the   petitioner   sought

adjustment     of    status      while     his    removal    proceedings       were

pending.      Here, in contrast, the BIA issued a final order of

removal more than five years before Zheng took any steps

toward adjusting his status, and the BIA denied his motion

based    on   its     reasonable      determination          that   he   had    not

demonstrated        that   any     statutory      or   regulatory    exceptions

excused the untimely and number-barred filing of his motion.

See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.

2006).    Moreover, contrary to Zheng’s arguments, our decision

in Sheng Gao Ni v. BIA, 520 F.3d 125 (2d Cir. 2008), does not

require reopening here because the BIA did not deny his motion

to reopen on jurisdictional grounds, but based on the time and

number limits found in the agency’s regulations.                    See 8 C.F.R.

§ 1003.2(c)(2).

    As Zheng acknowledges, we lack jurisdiction to review the

BIA’s discretionary decision not to reopen his proceedings sua

sponte.       See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.


                                         -3-
2006).      Although       we   retain   jurisdiction   to   consider    an

argument that the agency declined to exercise its sua sponte

authority because it misperceived the law, see Mahmood v.

Holder, 570 F.3d 466, 469 (2d Cir. 2009), Zheng contends only

that   it   is   “   not   clear”   whether   the   BIA’s    decision   was

predicated on flawed factual findings.

       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

34.1(b).

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk




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