08-3521-ag
    Zheng v. Holder
                                                                                  BIA
                                                                          A076 684 568

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT
                                 SUMMARY ORDER
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         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 30 th day of July, two thousand ten.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _______________________________________

    QI JU ZHENG,
             Petitioner,

                      v.                                   08-3521-ag
                                                           NAC

    ERIC H. HOLDER, JR., U.S. ATTORNEY
    GENERAL, *
               Respondent.
    _______________________________________
    FOR PETITIONER:                 Peter L. Quan, New York, New York.



                 *
              Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:           Gregory G. Katsas, Assistant
                          Attorney General, Blair T. O’Connor,
                          Assistant Director, Remi Adalemo,
                          Attorney, Office of Immigration
                          Litigation, Civil Division, United
                          States Department of Justice,
                          Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner Qi Ju Zheng, a native and citizen of the

People’s Republic of China, seeks review of a June 27, 2008

order of the BIA denying his motion to reopen his removal

proceedings.   In re Qi Ju Zheng, No. A076 684 568 (B.I.A.

June 27, 2008).     We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

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

abuse of discretion, mindful that such motions are

“‘disfavored.’”     See Ali v. Gonzales, 

, 517 (2d

Cir. 2006) (quoting INS v. Doherty, 

, 322-23

(1992)).   An alien who has been ordered removed may file one

motion to reopen within ninety days of the final

administrative order of removal.     8 U.S.C. § 1229a(c)(7).

This deadline may be excused if the alien can establish


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“changed country conditions arising in the country of

nationality.”     8 U.S.C. § 1229a(c)(7)(C)(ii);

8 C.F.R. § 1003.2(c)(3)(ii).     Here, the BIA properly denied

Zheng’s motion to reopen as untimely because it was filed

more than five years after his May 6, 2002 final order of

removal.   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2).

    Relying on Shou Yung Guo v. Gonzales, 

(2d

Cir. 2006), Zheng maintains that he has adduced new evidence

establishing that he would be forcibly sterilized based on

the birth of his two United States-born children.     This

argument is foreclosed by Jian Hui Shao v. Mukasey, 

, 169, 172-73 (2d Cir. 2008), which explained that the

documents adduced in Guo do not, by themselves, demonstrate

an alien’s prima facie eligibility for relief.     Accordingly,

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

motion to reopen.     See 8 U.S.C. § 1229a(c)(7)(C)(ii);

8 C.F.R. § 1003.2(c)(3)(ii).

    With respect to Zheng’s derivative asylum claim, as the

government concedes, the BIA erroneously relied on Zheng’s

age at the time his derivative asylum application was filed,

rather than at the time his father’s asylum application was



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filed.    8 U.S.C. § 1158(b)(3)(B).   Remand, however, would be

futile because the BIA properly found that Zheng is now

married and therefore does not qualify as a child eligible

to derive asylum from his parent under 8 U.S.C.

§ 1158(b)(3)(B).    See Xiao Ji Chen v. U.S. Dep’t of Justice,

, 338 (2d Cir. 2006) (holding that error does

not require remand if remand would be futile); see also

Akhtar v. Gonzales, 

, 407 (6th Cir. 2005)

(holding that agency properly precluded petitioner, who

turned twenty-one years old while his parent’s application

was pending, from applying for derivative asylum because he

was married).

    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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