Liu Zhisong v. Holder , 381 F. App'x 120 ( 2010 )

09-1115-ag
Zhisong v. Holder
BIA
Chew, IJ
A 072 783 606
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 23 rd day of June, two thousand ten.
PRESENT:
JOSÉ A. CABRANES,
ROBERT A. KATZMANN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_______________________________________
LIU ZHISONG,
Petitioner,
v. 09-1115-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Sandra Greene, York, PA.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Lauren Ritter, Law Clerk,
Office of Immigration Litigation,
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.
Liu Zhisong, a native and citizen of the People’s
Republic of China, seeks review of a February 17, 2009,
order of the BIA affirming Immigration Judge (“IJ”) George
T. Chew’s November 24, 2008, denial of his motion to reopen.
In re Liu Zhisong, No. A 072 783 606 (B.I.A. Feb. 17, 2009),
aff’g No. A 072 783 606 (Immig. Ct. N.Y. City Nov. 24,
2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the agency’s denial of Zhisong’s motion to
reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d
515, 517 (2d Cir. 2006). An alien may only file one motion
to reopen and must do so within 90 days of the final
administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.
§ 1003.2(c)(2). Although Zhisong’s motion was indisputably
untimely, there is no time or numerical limitation if the
alien establishes materially “changed country conditions
arising in the country of nationality.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
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The BIA did not abuse its discretion in finding that
the birth of Zhisong’s two U.S. citizen children constituted
a change in his personal circumstances, rather than a change
in country conditions sufficient to excuse the untimely
filing of his motion to reopen. See Wei Guang Wang v. BIA,
437 F.3d 270, 274 (2d Cir. 2006). Moreover, although
Zhisong argues that “the landscape of the law applicable to
[his motion to reopen] has sufficiently shifted,” and that
“China’s application of its birth policies has shifted,” he
submitted no evidence of changed country conditions with his
motion. See 8 C.F.R. § 1003.2(c)(1) (stating that “[a]
motion to reopen proceedings . . . shall be supported by
affidavits or other evidentiary material).
The BIA also did not abuse its discretion in finding
that Zhisong was not prejudiced by the IJ’s failure to
address his argument that he had adjusted his status to that
of a lawful permanent resident. See Garcia-Villeda v.
Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (holding that an
alien must establish that he was prejudiced by the alleged
error in order to prevail on a due process claim). The BIA
properly found that Zhisong failed to submit evidence
sufficient to establish that he had adjusted his status,
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because “[a]n approved visa petition is merely a preliminary
step in the visa application process,” and is therefore
insufficient, without more, to establish lawful permanent
residency. 1 See Firstland Intern., Inc. v. I.N.S., 377 F.3d
127, 129 n.3 (2d Cir. 2004) (internal citation omitted)
Finally, the BIA did not abuse its discretion in
holding that Zhisong was also not prejudiced by the IJ’s
failure to address his claim that he was eligible for
cancellation of removal. As the BIA found, Zhisong was
statutorily ineligible for that form of relief. Removal
proceedings replaced deportation proceedings in immigration
cases commenced on or after April 1, 1997. See Illegal
Immigration Reform and Immigrant Responsibility Act of 1996,
Division C of Pub. L. No. 104-208, 110 Stat. 3009-546
(enacted Sept. 30, 1996) (“IIRIRA”). Because Zhisong’s
proceedings commenced prior to the IIRIRA’s effective date,
the provisions regarding cancellation of removal do not
apply to him. See 8 U.S.C. § 1229b(b) (setting forth
eligibility requirements for cancellation of removal);
Escobar v. Holder, 567 F.3d 466, 475 (9th Cir. 2009) (“The
1
In his brief, Zhisong appears to concede that he
lost his status when his father divorced.
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possibility of cancellation only arises when removal
proceedings have been initiated.”); see also Delegation of
Authority to the Immigration and Naturalization Service to
Terminate Deportation Proceedings and Initiate Removal
Proceedings, 65 Fed. Reg. 71273, 71274 (proposed Nov. 30,
2000) (describing the administrative “repapering” procedure
whereby aliens in deportation proceedings rendered
ineligible for suspension of deportation by virtue of
IIRIRA’s retroactive stop-time rule could seek termination
of deportation proceedings and initiation of removal
proceedings in order to apply for cancellation of removal).
Instead, Zhisong was required to seek suspension of
deportation under 8 U.S.C. § 1254(a)(1) (repealed in 1996
with the enactment of IIRIRA), but failed to do so. See
Arenas-Yepes v. Gonzales, 421 F.3d 111, 116-17 (2d Cir.
2005) (holding that because petitioner’s proceedings
commenced after the enactment of IIRIRA, petitioner was
statutorily ineligible for suspension of deportation).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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