Xiu Zheng v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A095-955-172 Copies to all parties and the district court/agency. [999260518].. [13-1592]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1592

XIU ZHEN ZHENG, a/k/a Xue Hua Zheng, a/k/a Farzeea Binte
Abu Bakar Falli,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

December 10, 2013

Decided:

December 17, 2013

Before KING, SHEDD, and DAVIS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Peter L. Quan, LAW OFFICES OF PETER L. QUAN, P.L.L.C., Flushing,
New York, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Terri J. Scadron, Assistant Director, Greg D. Mack,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Xiu Zhen Zheng, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”), denying her motion to reopen.
We deny the petition for review.
The denial of a motion to reopen is reviewed for abuse
of discretion.

8 C.F.R. § 1003.2(a) (2013); Mosere v. Mukasey,

552 F.3d 397, 400 (4th Cir. 2009); Jean v. Gonzales, 435 F.3d
475, 481 (4th Cir. 2006).

The Board’s “denial of a motion to

reopen is reviewed with extreme deference, given that motions to
reopen are disfavored because every delay works to the advantage
of

the

deportable

United States.”

alien

who

wishes

merely

to

remain

in

the

Sadhvani v. Holder, 596 F.3d 180, 182 (4th Cir.

2009) (internal quotation marks omitted).

The motion “shall

state the new facts that will be proven at a hearing to be held
if the motion is granted and shall be supported by affidavits or
other evidentiary material.”

8 C.F.R. § 1003.2(c)(1) (2013).

Further, the motion “shall not be granted unless it appears to
the Board that evidence sought to be offered is material and was
not available and could not have been discovered or presented at
the former hearing.”

Id.

We have also recognized three independent grounds on
which

a

motion

to

reopen

removal

proceedings

may

be

denied:

“(1) the alien has not established a prima facie case for the
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underlying

substantive

introduced

previously

(3) where

relief

is

relief

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sought;

unavailable,

(2)

the

material

discretionary,

the

alien

entitled to the discretionary grant of relief.”

alien

has

evidence;
would

not
and

not

be

Onyeme v. INS,

146 F.3d 227, 234 (4th Cir. 1998) (citing INS v. Abudu, 485 U.S.
94, 104-05 (1988)).

We will reverse the denial of a motion to

reopen only if it is “‘arbitrary, irrational, or contrary to
law.’”

Mosere,

552

F.3d

at

400

(internal

quotation

marks

omitted).
An alien may file one motion to reopen within ninety
days

of

the

entry

of

a

final

order

of

removal.

8

U.S.C.

§ 1229a(c)(7)(A), (C) (2012); 8 C.F.R. § 1003.2(c)(2) (2013).
This time limit does not apply if the basis for the motion is to
seek asylum or withholding of removal based on changed country
conditions, “if such evidence is material and was not available
and would not have been discovered or presented at the previous
proceeding.”

8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii).
Zheng

concedes

that

her

motion

was

untimely.

We

conclude that the Board did not abuse its discretion in finding
that she failed to show a change in country conditions that
would excuse a late motion to reopen.
there

was

no

abuse

of

discretion

We also conclude that
by

the

Board

in

its

consideration of the medical records Zheng submitted in support
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of her new allegation that she suffered three forced abortions
in China.

Because Zheng failed to show a change in country

conditions,

her

claim

that

she

had

a

well-founded

fear

of

persecution based on her having given birth to two children is a
change in personal circumstances which does not excuse a late
motion to reopen.

See Ji Cheng Ni v. Holder, 715 F.3d 620, 624

(7th Cir. 2013) (birth of applicant’s two children was a change
in

personal

circumstances

and

not

a

change

in

country

conditions); Mei Ya Zhang v. Attorney Gen., 572 F.3d 1316, 1319
(11th Cir. 2009) (“An alien cannot circumvent the requirement of
changed country conditions by demonstrating only a change in her
personal circumstances.”).
We also conclude that the Board did not err in finding
that Zheng did not comply with the requirements for showing that
she received ineffective assistance of counsel.

See Barry v.

Gonzales, 445 F.3d 741, 745-47 (4th Cir. 2006).
Because

Zheng

was

in

asylum-only

proceedings,

the

Board correctly found it did not have jurisdiction to consider
the approved visa petition or her application for adjustment of
status.

See Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008)

(the relevant statutes and regulations do not give the Board
jurisdiction to adjust status in asylum-only proceedings); see
also Gjerjaj v. Holder, 691 F.3d 288, 293 (2d Cir. 2012).

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Insofar

as

Zheng

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argues

that

reopening

should

have

been granted in light of her younger child’s health issues, we
note

that

untimely

such
motion

relief
to

is

not

reopen

generally

without

available

through

an

change

in

establishing

a

petition

review.

country conditions.
Accordingly,
dispense

with

contentions

are

oral

we

deny

argument

adequately

the

because

presented

in

the
the

for
facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

PETITION DENIED

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