19

- 2923 Zheng v. Garland BIA A 209 127 618 

### 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 ELECTR ONIC 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.** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on th e 17**  **th da**  **y of August**  **, two thousand twenty** 

**** 4

**one**

**.** 5 6 **PRESENT:** 7 **DEBRA ANN LIVINGSTON ,**  8 **C hief**  **Judge ,**  9 **GUIDO CALABRESI ,**  10 **RICHARD J. SULLIVAN ,**  11 **Circuit Judges.** 12

**_____________________________________** 13 14 **HAI QIN ZHENG ,**  15 **Petitioner ,**  16 17

**v. 19** 

**- 2923**  18 **NAC** 19 **MERRICK B. GARLAND ,**  **UNITED** 20 **STATES ATTORNEY GENERAL,** 21 **Respondent**

**.** 22

**_____________________________________** 23 24 **FOR PETITIONER :**  Richard Tarzia , Esq., Belle Mead , 25 NJ

. 26 27 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 28 General ; Shelley R. Goad , 292 Assistant Director; Elizabeth R. 1 Chapman , Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, D C. 5

UPON DUE CONSIDERATION of this petition for review of a 6

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 8

is DENIED

. 9

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

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

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

terminate her removal proceedings

. In re Hai Qin Zheng , No. 13

A 209 127 618 (B.I.A. Aug. 29, 2019 )

. We assume the parties’ 14

familiarity with the underlying facts and procedural history. 15

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

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

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

if its “decision provides no rational explanation, 19

inexplicably departs from established policies, is devoid of 20

any reasoning, or contains only summary or conclusory 21

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

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

233

- 34 (2d Cir. 2005) (internal quotation marks omitted). 243 T he BIA did not abuse its discretion here

. Zheng argu ed 1

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

the immigration court lacked jurisdiction over her removal 3

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

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

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

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

does not trigger the stop

- time rule ending the noncitizen’s 8

period of continuous presence for purposes of cancellation of 9

removal. 138 S. Ct. at 2113

– 20 ; see also Niz

- Chavez v. 10

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

omits statutorily required information is not cured for 12

purposes of the stop

- time rule by a subsequent notice that 13

contains the missing information)

. Zheng did not apply for 14

cancellation of removal, but instead argues that Pereira also 15

renders such an NTA inadequate to vest jurisdiction in the 16

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

Gomez v. Barr , 922 F.3d 101 (2d Cir. 2019), w hich hold s that 18

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

to vest jurisdiction in the immigration court if the 20

noncitizen was sent a subsequent hearing notice with the 214 missing information , id. at 110

– 12

. See also Niz

- Chavez , 141 1

S. Ct. at 1479

– 8 4 (like Pereira , addressing only the stop

2

time rule and not questioning the immigration court’s 3

jurisdiction over removal proceedings commenced by an 4

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

appeared at them. 6

For the foregoing reasons, the petition for review is 7

DENIED

. All pending motions and applications are DENIED and 8

stays VACATED. 9

FOR THE COURT: 10 Catherine O ’ Hagan Wolfe , 11 Clerk of Court 12 13