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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-2841

___________

MEI HUA ZHENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A076-209-559)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 22, 2012

Before: FISHER, WEIS and BARRY, Circuit Judges

(Opinion filed: February 23, 2012 )

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OPINION

___________

PER CURIAM.

Mei Hua Zheng petitions for review of a Board of Immigration Appeals (“BIA”) 

decision denying her motion to reopen her immigration proceedings. We will deny the 

petition.
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Zheng is a native and citizen of the People’s Republic of China who entered the 

United States in 2007 without valid travel documents and was placed in removal 

proceedings. Zheng conceded removability pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I), 

and applied for asylum, withholding of removal, and protection under the United Nations 

Convention Against Torture (“CAT”) on the basis of religious persecution. An 

immigration judge denied relief, and the BIA affirmed that decision in September 2009. 

This Court denied her petition for review in February 2011 (docketed at C.A. No. 09-

4076).

A couple of months after the petition was denied, and about a year and a half after 

the BIA affirmed the order of removal, Zheng and the Department of Homeland Security 

(“DHS”) filed a joint motion to reopen the proceedings. The motion stated only that 

Zheng was eligible to adjust her status due to her marriage to a United States citizen and 

sought reopening “for purposes of the alien’s adjustment of status.” The BIA denied the 

joint motion in June 2011, stating that Zheng’s application for adjustment of status fell 

under the exclusive jurisdiction of the United States Citizenship and Immigration 

Services (“USCIS”), who “can adjudicate her application without any need to reopen 

these removal proceedings.” The BIA also noted that Zheng had apparently been 

released under an order of supervision and concluded that “particularly considering the 

statements in the joint motion, there is no indication that the DHS would seek to remove 

[her] while USCIS adjudicates her adjustment application.” Id. If DHS did seek to 

remove her while her application was pending, the BIA pointed out that Zheng could 
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request an administrative stay of removal from DHS pursuant to 8 C.F.R. §§ 241.6(a) and 

1241.6(a). Id. In conclusion, the BIA stated that the parties had not shown a “need” to 

reopen the proceedings given the “costs” involved. Id. But the Board also advised the 

parties that if the “circumstances noted above are not correct,” they could refile the 

motion to reopen with the BIA. Id. Zheng then petitioned this Court for review of the 

BIA’s decision.

We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to 

reopen for an abuse of discretion. Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). 

Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, 

or contrary to law.” Id. (citation omitted).

Zheng contends that the BIA abused its discretion by denying the motion to 

reopen on jurisdictional grounds. Although she acknowledges that the USCIS has 

exclusive jurisdiction over her adjustment application,1

 1 Aliens admitted or paroled into the United States may have their status adjusted to that 

of lawful permanent resident if they meet certain requirements. 8 U.S.C. § 1255(a). 

Except in limited circumstances (which are not applicable in this case), immigration 

judges do not have jurisdiction to adjudicate adjustment applications filed by “arriving 

aliens” such as Zheng. 8 C.F.R. § 1245.2(a)(1)(ii). Instead, jurisdiction lies with the 

USCIS. 8 C.F.R. § 245.2(a)(1). 

she argues that the BIA “failed to 

recognize the ‘need’ to reopen removal proceedings so that [she] could pursue her 

adjustment application without remaining subject to a final order of removal.” Pet. Br. at 

9 (emphasis in original). She relies primarily on a decision from the United States Court 

of Appeals for the Second Circuit, Ni v. Bd. of Immigration Appeals, 520 F.3d 125 (2d 
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Cir. 2008), for this proposition. In Ni, the court considered three consolidated petitions 

from arriving aliens under removal orders whose motions to reopen for purposes of 

seeking adjustment of status from the USCIS had been denied by the BIA on 

jurisdictional grounds. The court held that the BIA’s “rote recital” of its lack of 

jurisdiction, even though correct, did not provide a rational explanation for its rulings. Id.

at 129-30. In particular, the court faulted the BIA for failing to consider that the 

petitioners sought reopening so that they could proceed with adjustment of status 

applications without remaining subject to final orders of removal. Id. at 130. The BIA’s 

reason for denying the motions to reopen – lack of jurisdiction over the adjustment 

applications – was therefore not responsive to the relief sought. Id.

In the present case, however, the BIA did not rely solely upon its lack of 

jurisdiction over Zheng’s adjustment application to deny the motion to reopen. Rather, 

the BIA specifically observed that there was “no indication that the DHS would seek to 

remove [Zheng] while USCIS adjudicates her adjustment application.” The BIA also 

noted that Zheng could apply for an administrative stay if the DHS did seek her removal. 

The BIA thus addressed Zheng’s request to pursue an adjustment application without 

remaining subject to a final order of removal, but concluded that she had not shown a 

need to reopen the removal proceedings under the circumstances perceived by the Board. 

Therefore, Zheng’s assertion that the BIA did not consider the purpose of her motion is 

incorrect, and the Ni decision is of no aid to her. Furthermore, we note that the BIA 

explicitly advised the parties that if the circumstances set forth in the order were not 
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correct, they could refile the motion to reopen “with further explanation.” Nowhere in 

the record or filings before us has Zheng alleged that the BIA was wrong about her 

circumstances, e.g., she has not alleged that the DHS seeks to remove her while her 

adjustment application is pending. The BIA considered both the facts relevant to the 

motion and the particular relief sought. Zheng’s challenge to the BIA’s order is based 

solely on an erroneous view of that order. Consequently, it cannot be said that the BIA 

abused its discretion by denying the motion to reopen.

For these reasons, we will deny the petition for review.