NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

XUMING ZHANG, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-73556 

Agency No. A072-765-901 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 8, 2022**

San Francisco, California

Before: WARDLAW, IKUTA, and BADE, Circuit Judges.

Xuming Zhang petitions for review of the Board of Immigration Appeals’ 

(“BIA”) dismissal of his appeal from an Immigration Judge’s (“IJ”) decision finding

that it lacked jurisdiction to adjudicate Zhang’s application for an adjustment of 

status. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 11 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Zhang arrived in the United States in 1993. He was denied entry and referred 

to an IJ for exclusion proceedings.1 The IJ ordered Zhang excluded for being an 

immigrant without a valid visa. A decade later, Zhang’s exclusion proceedings were 

reopened but administratively closed to allow him to pursue an adjustment of status. 

Zhang applied for a waiver of inadmissibility and for an adjustment of status with 

the United States Citizenship and Immigration Services (“USCIS”) in 2009. USCIS 

denied the applications, and the Administrative Appeals Office upheld USCIS’s 

decisions.

Exclusion proceedings resumed in March 2019. During those proceedings, 

Zhang asked the IJ to “redetermine” his waiver application and application for 

adjustment of status, arguing that he was “eligible” for an adjustment under 8 U.S.C. 

§ 1255(i).

The BIA properly concluded that it and the IJ lacked jurisdiction to adjudicate

Zhang’s application for an adjustment of status.

2

 Zhang sought to have the IJ adjust 

1 Before the Illegal Immigration Reform and Immigrant Responsibility Act of 

1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (1996), there were two types

of immigration proceedings: “deportation hearings and exclusion hearings.” Landon 

v. Plasencia, 459 U.S. 21, 25 (1982). The IIRIRA merged these proceedings into a 

single category called “removal proceedings.” Romero-Torres v. Ashcroft, 327 F.3d 

887, 889 (9th Cir. 2003).

2 We do not accord Chevron deference to the BIA’s decision because it is “an 

unpublished disposition, issued by a single member of the BIA.” Ortega-Cervantes 

v. Gonzales, 501 F.3d 1111, 1113 (9th Cir. 2007) (internal quotation marks omitted); 

cf. Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
3 

his status under 8 U.S.C. § 1255(i). That statute provides that “an alien physically 

present in the United States . . . may apply to the Attorney General for the adjustment 

of his or her status to that of an alien lawfully admitted for permanent residence” if 

certain conditions are met. Id. § 1255(i)(1). Congress did not specify how the 

Attorney General must adjudicate such applications. Instead, the Immigration and 

Nationality Act (“INA”) leaves it to the Attorney General to “establish such 

regulations, . . . delegate such authority, and perform such other acts as the Attorney 

General determines to be necessary for carrying out this section.” Id. § 1103(g)(2).

The Attorney General has promulgated a regulation providing that IJs do “not 

have jurisdiction to adjudicate any application for adjustment of status filed by [an] 

arriving alien” in removal proceedings, subject to one exception that does not apply 

in this case. 8 C.F.R. § 1245.2(a)(1)(ii). No one disputes that Zhang is an “arriving 

alien.” Thus, under the agency’s regulations, the IJ lacked authority to consider “any 

application for adjustment of status” filed by Zhang. See id.; see also Jiang v. 

Gonzales, 425 F.3d 649, 652 (9th Cir. 2005) (“An arriving alien is not eligible to 

renew a previously denied application for adjustment of status during removal 

proceedings.”).

Zhang argues that 8 C.F.R. § 1245.2(a)(1)(ii) is “inapposite” because he is 

seeking an adjustment of status under 8 U.S.C. § 1255(i), not § 1255(a). We 

disagree. The regulation’s prohibition is broad: It bars IJs from adjudicating “any
4 

application for adjustment of status filed by [an] arriving alien,” not just those filed 

under 8 U.S.C. § 1255(a). See 8 C.F.R. § 1245.2(a)(1)(ii) (emphasis added); U.S. ex 

rel. Barajas v. United States, 258 F.3d 1004, 1011 (9th Cir. 2001) (“The term ‘any’ 

is generally used to indicate lack of restrictions or limitations on the term 

modified.”). And the other purported distinctions that Zhang identifies do not appear

in the jurisdictional section of the regulation. Compare 8 C.F.R. § 1245.2(a)(1), with 

id. § 1245.2(a)(3).

Moreover, the BIA’s published decisions pre-dating the IIRIRA support the 

conclusion that the BIA and IJ lacked jurisdiction to adjudicate Zhang’s adjustment 

application. See In re Castro-Padron, 21 I. & N. Dec. 379, 379 (B.I.A. 1996) (“In 

exclusion proceedings, the [IJs] and the [BIA] generally lack jurisdiction to entertain 

an application for adjustment of status under section 245 of the Act.”3); Matter of 

Manneh, 16 I. & N. Dec. 272, 274 (B.I.A. 1977) (explaining that then-applicable 

regulations limited the IJ’s authority “over applications for section 245 relief to those 

which [were] filed by aliens in deportation . . . proceedings,” and that IJs did “not

have that authority in exclusion proceedings” (emphases added)). The BIA’s 

decision in Matter of Grinberg, 20 I. & N. Dec. 911 (B.I.A. 1994), does not support 

Zhang’s jurisdictional argument. Grinberg concerned deportation proceedings, see 

3 Section 245 of the INA is codified at 8 U.S.C. § 1255. The Illegal 

Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 

Stat. 3009 (1996).
5 

id. at 911, and Zhang concedes that he was in exclusion proceedings.

The remainder of Zhang’s arguments, which largely focus on whether he 

meets the statutory criteria in 8 U.S.C. § 1255(i), are unavailing.

The petition for review is DENIED.