19-2923

Zheng v. Garland

BIA

A209 127 618

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 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A 

PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 17th 4 day of August, two thousand twenty5 one.

6

7 PRESENT:

8 DEBRA ANN LIVINGSTON,

9 Chief Judge,

10 GUIDO CALABRESI,

11 RICHARD J. SULLIVAN,

12 Circuit Judges.

13 _____________________________________

14

15 HAI QIN ZHENG,

16 Petitioner,

17

18 v. 19-2923

19 NAC

20 MERRICK B. GARLAND, UNITED

21 STATES ATTORNEY GENERAL,

22 Respondent.

23 _____________________________________

24

25 FOR PETITIONER: Richard Tarzia, Esq., Belle Mead,

26 NJ.

27

28 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

29 General; Shelley R. Goad, 
2

1 Assistant Director; Elizabeth R. 

2 Chapman, Trial Attorney, Office of 

3 Immigration Litigation, United 

4 States Department of Justice, 

5 Washington, DC.

6 UPON DUE CONSIDERATION of this petition for review of a 

7 Board of Immigration Appeals (“BIA”) decision, it is hereby 

8 ORDERED, ADJUDGED, AND DECREED that the petition for review 

9 is DENIED.

10 Petitioner Hai Qin Zheng, a native and citizen of the 

11 People’s Republic of China, seeks review of an August 29, 

12 2019, decision of the BIA denying her motion to reopen and 

13 terminate her removal proceedings. In re Hai Qin Zheng, No. 

14 A 209 127 618 (B.I.A. Aug. 29, 2019). We assume the parties’ 

15 familiarity with the underlying facts and procedural history.

16 We review the BIA’s denial of a motion to reopen for 

17 abuse of discretion. See Zhao Quan Chen v. Gonzales, 492 

18 F.3d 153, 154 (2d Cir. 2007). The BIA abuses its discretion 

19 if its “decision provides no rational explanation, 

20 inexplicably departs from established policies, is devoid of 

21 any reasoning, or contains only summary or conclusory 

22 statements; that is to say, where the Board has acted in an 

23 arbitrary or capricious manner.” Kaur v. BIA, 413 F.3d 232, 

24 233-34 (2d Cir. 2005) (internal quotation marks omitted).
3

1 The BIA did not abuse its discretion here. Zheng argued

2 that, under Pereira v. Sessions, 138 S. Ct. 2105, 2114 (2018), 

3 the immigration court lacked jurisdiction over her removal 

4 proceedings because her notice to appear (“NTA”) did not 

5 include the date and time of her initial hearing. In Pereira, 

6 the Supreme Court held that an NTA that fails to designate 

7 the time or place of an initial hearing in removal proceeding 

8 does not trigger the stop-time rule ending the noncitizen’s 

9 period of continuous presence for purposes of cancellation of 

10 removal. 138 S. Ct. at 2113–20; see also Niz-Chavez v. 

11 Garland, 141 S. Ct. 1474 (2021) (holding that an NTA that 

12 omits statutorily required information is not cured for 

13 purposes of the stop-time rule by a subsequent notice that 

14 contains the missing information). Zheng did not apply for 

15 cancellation of removal, but instead argues that Pereira also 

16 renders such an NTA inadequate to vest jurisdiction in the 

17 immigration court. Zheng’s argument is foreclosed by Banegas 

18 Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019), which holds that 

19 an NTA that omits the date and time of the hearing is adequate 

20 to vest jurisdiction in the immigration court if the 

21 noncitizen was sent a subsequent hearing notice with the 
4

1 missing information, id. at 110–12. See also Niz-Chavez, 141 

2 S. Ct. at 1479–84 (like Pereira, addressing only the stop3 time rule and not questioning the immigration court’s 

4 jurisdiction over removal proceedings commenced by an 

5 incomplete NTA). Zheng received notice of her hearings and 

6 appeared at them.

7 For the foregoing reasons, the petition for review is 

8 DENIED. All pending motions and applications are DENIED and 

9 stays VACATED.

10 FOR THE COURT: 

11 Catherine O’Hagan Wolfe,

12 Clerk of Court

13