2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-18-2005

Zheng v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2710

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"Zheng v. Atty Gen USA" (2005). 2005 Decisions. Paper 1165.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 04-2710

______________

XIU HUA ZHENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNTIED STATES,

Respondent

____________

ON PETITION FOR REVIEW FROM AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

(Board No. A73-169-175)

____________

Submitted Under Third Circuit L.A.R. 34.1(a)

May 4, 2005

Before: McKEE, VAN ANTWERPEN and WEIS, Circuit Judges.

(Filed May 18, 2005)

____________

OPINION 

 

WEIS, Circuit Judge.

Petitioner is a native and citizen of China who arrived in the United States

without inspection in 1993. On October 3, 2003, the Board of Immigration Appeals
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denied the petitioner’s claims for asylum, violations of the Convention Against Torture,

and withholding of deportation. In addition, the BIA denied a remand for adjustment of

status based on an employer’s application for a visa for petitioner.

On June 1, 2004, the BIA denied motions to reopen and reconsider the

October 3, 2003 decision. Petitioner has appealed only the June 1, 2004 order. 

The petitioner’s brief argues the merits of his case underlying the BIA’s

order of October 3, 2003. However, a petition for review of that order should have been

filed in this Court within thirty days. 8 U.S.C. § 1252(b)(1); see also Stone v. INS, 514

U.S. 386 (1995). Petitioner does not discuss that issue but simply argues as if the October

3, 2003 order were at issue; it is not. The question before us is whether the BIA abused

its discretion in denying the motions to reopen and reconsider.

The Board has considerable discretion in deciding whether to reopen. Here,

petitioner presented his employer’s application for a visa based on employment. The

Board was justified in not relying on that documentation because the request for an

employment-based visa is dependent on meeting a quota. The likelihood of the

application being approved was far from certain. In addition, the Service opposed the

motion to reopen. 

Petitioner challenges the IJ’s adverse credibility determination, but we

conclude that contention lacks merit. We have held that an adverse credibility finding

may not be based on collateral inconsistencies. Tarrawally v. Ashcroft, 338 F.2d 180,
3

187 (3d Cir. 2003). In this case, however, the IJ’s adverse finding was based on a number

of major inconsistencies that were detailed in his opinion. These inconsistencies went to

the heart of the petitioner’s application. The Board was thus well within its discretion

when it determined that the petitioner did not support his claim for reopening. 

We find no abuse of discretion here. Nor is there new evidence in the

record to justify granting the motion to reconsider. Petitioner must show an abuse of

discretion. Merely re-arguing the merits of the original order of October 3, 2003 does not

satisfy his burden. 

Accordingly, the petition for review will be denied.