Zhang v. Lynch , 633 F. App'x 701 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2016
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Elisabeth A. Shumaker
Clerk of Court
ZHAOHUI ZHANG,
Petitioner,
v. No. 15-9538
(Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
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Petitioner Zhaohui Zhang, proceeding pro se, petitions for review of the Board
of Immigration Appeals (BIA) order denying his motion to reopen and reissue its
decision. Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.
Mr. Zhang, a citizen of China, entered the United States as a nonimmigrant
visitor in December 2007. In February 2008 the visa expired, and he filed for asylum
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and other relief. After an immigration judge (IJ) denied his application in June 2013,
he timely appealed to the BIA.
In June 2014 the BIA upheld the IJ’s decision and dismissed Mr. Zhang’s
appeal. He filed a pro se motion to reopen and reissue in March 2015. In support of
his motion he stated he did not become aware that his case had been dismissed until
February 2015, when he called the office he had designated as the address at which
he would receive his mail. The motion was accompanied by an affidavit of the office
manager, stating that she worked “as a Mandarin-English translator for several
immigration attorneys,” that she allowed Mr. Zhang to use her address because he did
not have a stable address, that she had received the envelope (which she did not
bother to open) at a time when she was “very busy and under a lot of stress,” and that
she had misplaced the decision and forgotten to inform Mr. Zhang about it. R. Vol. 1
at 12.
The BIA denied the motion, stating: “The record reflects that the Board’s
decision was properly served on the respondent at the address that he provided. We
are not persuaded that there is an adequate explanation for the delay of over 10
months in seeking to further pursue this matter.” Id. at 2. This appeal followed.
As a threshold matter, we note that our jurisdiction is limited to review of the
BIA’s March 2014 order denying Mr. Zhang’s motion. Under the Immigration and
Nationality Act, a petition for review of a final order of removal “must be filed not
later than 30 days after the date of the final order of removal.” 8 U.S.C.
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§ 1252(b)(1). Because Mr. Zhang did not file his petition until March 2015, we
decline to address his contentions with respect to the BIA’s June 2014 decision.
We review for abuse of discretion the BIA’s denial of a motion to reopen. See
Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013). “The BIA abuses its
discretion when its decision provides no rational explanation, inexplicably departs
from established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004)
(internal quotation marks omitted). Because motions to reopen immigration cases are
disfavored, a petitioner bears a heavy burden to show that the BIA abused its
discretion. See Maatougui, 738 F.3d at 1239.
We construe Mr. Zhang’s pro se pleadings liberally. See Childs v. Miller,
713 F.3d 1262, 1264 (10th Cir. 2013). But pro se parties must follow the same rules
of procedure as other litigants, see Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007), and we will not supply additional factual allegations or construct legal
theories on their behalf, see Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
2009).
Mr. Zhang does not dispute that the BIA mailed a copy of its June 2014
decision to the address he provided or that it was in fact received there. He does not
allege that he took any steps to inquire about the status of his case before
February 2015, eight months after the BIA issued its decision and a year and a half
after he filed his appeal. Nor does he set forth any unique circumstances to excuse
his untimeliness. See Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir.
3
2003). Indeed, by providing vague, generalized excuses – such as, immigrants “tend
to change residences quite often for one reason or another” – and by attributing the
delay to “inadvertency,” Br. at 14, he seems to suggest, if not concede, that no such
circumstances exist in this case. We discern no abuse of the BIA’s discretion in
denying his motion.
The petition for review is denied.
Entered for the Court
Harris L Hartz
Circuit Judge
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