NOT FOR PUBLICATION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 APPEALS2

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

to an IJ for exclusion proceedings. 1 The IJ order ed 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 applicat ions
, a nd the Administrative Appeal s 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. Ashc roft , 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) (intern al 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 condition s are met. Id. § 1255(i)(1). Congress di d 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).

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

have jurisdiction to adjudicate any application for adjustment of status filed b y [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 co nsider “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

seek ing 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 “ any4

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 t he other purported distinctions that Zha ng 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 I IRIRA support the
conclusion that the BIA and IJ lacked jurisdic tion 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 , 27 4 (B.I.A. 1977) ( explain ing that then

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

which [were] filed by aliens in deportation . . . proceedings
, ” a nd that IJs did “ not
have that authority in exclusion proceedings” (emphases added) )

. The BIA’s

d ecision in Matter of Grinberg , 20 I. & N. Dec. 911 (B.I.A. 1994), does not support
Zhang’s jurisdictional argument

. Grinberg concerned deportation proceedings
, s ee

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.

T he remainder of Zhang’s arguments, which largely focus on whether he

meets the statutory criteria in 8 U.S.C. § 1255(i), are un a vailing.
The petition for review is DENIED

.