#### CHI FENG ZHENG, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09-3769-ag.

United States Court of Appeals, Second Circuit.

May 17, 2010.

*92Peter L. Quan, New York, NY, for Petitioner.

Tony West, Assistant Attorney General, Linda S. Wernery, Assistant Director, James E. Grimes, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

PRESENT: GUIDO CALABRESI, ROBERT A. KATZMANN, B.D. PARKER, Circuit Judges.

*SUMMARY ORDER*

Petitioner Chi Feng Zheng, a native and citizen of the People’s Republic of China, seeks review of an August 13, 2009, order of the BIA denying his motion to reopen his removal proceedings. *In re Chi Feng Zheng,*No. [ AXXX XXX XXX ] (B.I.A. Aug. 13, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

We review the BIA’s denial of a motion to reopen for abuse of discretion. *See Ali v. Gonzales,*448 F.3d 515, 517 (2d Cir.2006). An alien who has been ordered removed may file one motion to reopen, but must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7). Here, it is beyond dispute that Zheng’s motion to reopen was untimely.

The 90-day filing deadline may be excused if the alien can establish “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably concluded, however, that the evidence Zheng submitted, a notice purportedly sent to him by the Chinese government, “[did] not establish ... that the government now is motivated to persecute [him] for a new reason.” *See Jian Hui Shao v. Mukasey,*546 F.3d 138, 169-72 (2d Cir.2008). Indeed, the notice did not reveal a change in country conditions, but merely supported the same claim that Zheng had asserted before the IJ.

Furthermore, the BIA did not abuse its discretion by denying Zheng’s motion to reopen based on a pending 1-130 visa petition filed on his behalf. As the BIA found, eligibility to adjust status is not a statutory basis for excusing the untimely filing of a motion to reopen. *See*8 U.S.C. *93§ 1229a(c)(7)(C)(ii). Thus, when an alien seeks reopening in an untimely motion on the basis that he is eligible to adjust his status, he is invoking the BIA’s authority to reopen proceedings *sua sponte. 8*C.F.R. § 1003.2(a); *Mahmood v. Holder,*570 F.3d 466, 470-71 (2d Cir.2009). The BIA’s determination as to whether it will exercise that authority is entirely discretionary and thus beyond the scope of this Court’s jurisdiction. *See Ali v. Gonzales,*448 F.3d 515, 517 (2d Cir.2006). *Cf. Mahmood,*570 F.3d at 470-71.

Because Zheng did not demonstrate changed country conditions, the BIA did not abuse its discretion in denying his motion. *Yuen Jin v. Mukasey,*538 F.3d 143, 156 (2d Cir.2008). Accordingly, we need not reach his argument that he is *prima facie*eligible for relief. *See*8 U.S.C. § 1229a(c)(7)(C)(ii).

For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).