Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4344




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-4344
                                     ___________

                                   ZHAO XIN ZHU,
                                        Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                (BIA No. A78-864-293)
                     Immigration Judge: Honorable Henry S. Dogin
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 18, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                              (Filed: September 19, 2008)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

             Zhao Xin Zhu (a.k.a. Qun Zheng), a native and citizen of China, petitions

for review of a decision of the Bureau of Immigration Appeals (BIA) denying his second

motion to reopen. For the following reasons, we will deny the petition.
               As a minor, Zhu entered the United States at the O’Hare International

Airport in Chicago, Illinois, as a nonimmigrant Transit Without Visa on his way to Sao

Paolo, Brazil; he stayed beyond the eight-hour period authorized by immigration

authorities. He was taken into custody and served with a Notice to Appear (NTA). Zhu

appeared before an immigration judge (IJ), admitted the allegations and, thereafter,

applied for asylum, withholding of removal and protection under the Convention Against

Torture (CAT); the IJ denied all claims. On June 29, 2004, the BIA affirmed; we denied

his petition for review.1

               On January 25, 2006, Zhu filed his first motion to reopen the Board’s June

29, 2004 decision, seeking to apply for asylum based on changed country conditions in

China. The BIA concluded that his claim of changed circumstances under 8 C.F.R.

1208.13(b)(1)(i)(A) was meritless and denied the motion as untimely. Zhu did not

petition for review of that decision.

               In 2007, Zhu’s mother married his stepfather, a naturalized United States

citizen, who filed an I-130 Petition for Alien Relative on his behalf; the U.S. Citizen and

Immigration Services approved the petition. Zhu then filed a second motion to reopen

with the BIA to adjust his status pursuant to 8 U.S.C. 1229a(7), arguing that his approved

I-130 petition constitutes previously unavailable evidence, and that he is able to establish

his prima facie eligibility for adjustment of status.



  1
      See Zheng v. Gonzalez, 

(3d. Cir. 2005).

                                               2
              The BIA denied his second motion as untimely and “number-barred,”

concluding that Zhu did not fall within any of the exceptions. The BIA also pointed out

that Zhu’s approved I-130 petition did not indicate that he was eligible for adjustment of

status: The approval notice reflected a priority date of March 26, 2007, which was not

current according to the State Department’s Visa Bulletin for November 2007, which

indicated a current priority date of December 8, 2001. Through counsel, Zhu now

petitions for review of the BIA’s decision.

              We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(5). We review the

BIA’s denial of a motion to reopen for abuse of discretion; and we will reverse the BIA’s

decision only if it is “arbitrary, irrational, or contrary to law.” Filja v. Gonzalez, 

, 251 (3d Cir. 2006).

              Generally, petitioners must file motions to reopen within ninety-days of the

date of entry of the final administrative order of removal, see 8 U.S.C. §

1229a(c)(7)(C)(i), and they are generally limited to filing one such motion, see 8 C.F.R. §

1003.2(c)(2). The motion to reopen must state new facts to be proven and must be

supported by affidavits or other evidentiary material. See 8 U.S.C. § 1229a(c)(7)(B).

Finally, the movant must establish his prima facie eligibility for the underlying relief

sought. See I.N.S. v. Abudu, 

, 104 (1988). A movant is not subject to the

time limits under 8 U.S.C. § 1229a(c)(7)(C)(i) if he is seeking to file applications for

asylum or withholding of removal based on changed country conditions. The number-



                                               3
bar on motions to reopen is also subject to a number of exceptions. See 8 C.F.R. §

1003.2.

              Zhu insists that the BIA’s decision was erroneous as a matter of law, given

his new status as an immediate relative of a United States citizen and his prima facie

eligibility for adjustment of status. However, these arguments do not resolve the

problem that his motion to reopen was untimely, having been filed over four years after

the BIA affirmed the IJ’s original order of removal, and number barred, as it is his second

motion. Because none of the statutory exceptions applies, see 8 U.S.C. § 1229a(c)(7)(C)

& 8 C.F.R. § 1003.2, we agree that it is untimely and number-barred.

              Even assuming that the motion were properly before the BIA, it correctly

ruled that the approved I-130 petition does not establish Zhu’s eligibility for adjustment

of status.2 Under § 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), an

alien must have access to an “immediately available” visa in order to be eligible for

adjustment of status. See also 8 C.F.R. §1245.1(g)(1). As the beneficiary of an approved

I-130 petition filed by a parent who is a citizen, Zhu is subject to the worldwide numerical

limitations on the allocation of visas, which are set forth in 8 U.S.C. § 1153(a). Because

he is unmarried, he falls within the first-preference category of family-sponsored

applicants. 

the State Department’s Visa Bulletin for February 2008,



  2
    8 U.S.C. 1252(a)(2)(B)(i) does not foreclose judicial review of the BIA’s
determination that an application was legally ineligible for adjustment. See Pinho v.
Gonzalez, 

, 204 (3d Cir. 2005).

                                             4
visas are currently being allocated to individuals in Zhu’s preference category who have

been issued priority dates of February 8, 2002 and earlier. The BIA correctly determined

that Zhu does not have a currently available visa because his approved I-130 petition

reflects a priority date of March 26, 2007. Therefore, we agree that Zhu is prima facie

ineligible for adjustment of status.

              Because we conclude that the BIA did not abuse its discretion in denying

Zhu’s second motion to reopen, because its findings were not contrary to law, we will

deny his petition for review.3




  3
    To the extent that Zhu’s petition for review includes a motion for declaratory and
injunctive relief, the motion is denied.

                                             5