Neng Bin Zhang v. Keisler
Neng Bin Zhang v. Keisler
Opinion of the Court
SUMMARY ORDER
Neng Bin Zhang, a native and citizen of the People’s Republic of China (“China”), seeks review of a May 16, 2006 order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of the November 8, 2005 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying his motion to reopen. In re Neng Bin Zhang, No. A73 533 308 (B.I.A. May 16, 2006), aff'g No. A73 533 308 (Immig. Ct. N.Y. City, Nov. 8, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An abuse of discretion may be found where the BIA’s decision “provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements;
The BIA did not abuse its discretion in denying Zhang’s appeal of the IJ’s denial of his motion to reopen where the motion was filed nearly nine years after he had been found deportable and had failed to comply with a voluntary departure order, and where he did not demonstrate that the motion met the requirements for an exception to the filing deadline. See 8 C.F.R. § 1003.23(b)(1) (motion to reopen must be filed within 90 days of final administrative decision); id. § 1003.23(b)(4) (providing exceptions).
In his motion to reopen, Zhang argued that because of the birth of his two children in the United States, and the changed definition of “refugee” under the Immigration and Nationality Act (as amended by the Illegal Immigration Reform and Immigration Responsibility Act of 1996), he had a well-founded fear of persecution under China’s coercive population control policies.
With respect to Zhang’s contention that the agency erred by denying his motion to reopen for the purpose of seeking an adjustment of status, the BIA also reasonably found that he failed to demonstrate that he was exempt from the 90-day filing deadline. While he provided previously unavailable evidence, see 8 C.F.R. § 1003.23(b)(3), that the priority date on the approved immigrant visa petition filed on his behalf had become current, Zhang failed to argue — either in his motion to the IJ, in his appeal to the BIA, or in his brief to this Court — that any exceptions to the 90-day filing deadline for motions to reopen were applicable. Cf. Matter of Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002). Thus, the BIA did not err in denying his motion to reopen as untimely.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED. Petitioner’s pending request for oral argument in this petition
. Zhang now argues that he merited asylum, withholding of removal, and CAT relief based on his initial claim regarding his involvement with the Student Democracy Movement. This issue was not raised in his motion to reopen with the IJ, and it was not meaningfully raised in his appeal to the BIA. As the issue was not exhausted, we decline to consider it. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1, 119-20 (2d Cir. 2007).
Reference
- Full Case Name
- NENG BIN ZHANG v. Peter D. KEISLER, Acting U.S. Attorney General
- Status
- Published