14-1109-ag Chuan Quan Zheng v. Eric H. Holder

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 16 th day of January, two thousand fifteen.

PRESENT: J OSÉ A. C ABRANES , C HESTER J. S TRAUB , D EBRA A NN L IVINGSTON , Circuit Judges

.

C HUAN Q UAN Z HENG ,

Petitioner

,

v. No. 14-1109-ag E RIC H. H OLDER , J R ., U NITED S TATES A TTORNEY G ENERAL , Respondent

.

FOR PETITIONER: Chunyu Jean Wang, Wang Law Office, PLLC, Flushing, NY.

FOR APPELLEE: Joyce R. Branda, Acting Assistant Attorney General; Jennifer L. Lightbody, Senior Litigation Counsel; Andrea N. Gevas, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.2 UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of a Board of Immigration Appeals
decision is DENIED

. Petitioner Chuan Quan Zheng, a native and citizen of China, seeks review of an April 8, 2014 decision of the Board of Immigratio n Appeals (“BIA”) affirming a December 9, 2013, decision of an Immigration Judge (“IJ”) denying Zheng’s motion to reopen. In re Chuan Quan Zheng

, No. A072 780 740 (B.I.A. Apr. 8, 2014), aff’g No. A072 780 740 (Immig. Ct. N.Y. City Dec. 9, 2013). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Where, as here, the BIA has applied the correct law, we review the BIA’s decision affirming an IJ’s denial of a motion to reopen for abuse of discretion, Maghradze v. Gonzales , 462 F.3d 150, 152 (2d Cir. 2006), remaining mindful of the Supr eme Court’s admonition that such motions are “disfavored,” Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v. Doherty , 502 U.S. 314, 323 (1992)). An alien seeking to reopen proceedin gs is required to file a motion to reopen no later than 90 days after the date on which the final admini strative decision was rendered and may file only
one such motion. See 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2).

The BIA did not abuse its discretion in affirm ing the IJ’s denial of Zheng’s motion to reopen. The Immigration and Nationality Act (“IN A”) provides: “[i]f the Attorney General finds that an alien has reentered the United States illega lly after having been removed or having departed voluntarily, under an order of removal, the prior orde r of removal is reinstated from its original date
and is not subject to being reopened or reviewed.” 8 U.S.C. § 1231(a)(5). We defer to the agency’s regulatory interpretation of § 1231(a)(5), un der which reinstatement is automatic upon a determination that: (1) the alien is the same pers on against whom the prior removal order had been entered, and (2) the alien had unla wfully reentered the country. Garcia-Villeda v. Mukasey , 531 F.3d 141, 148-49 (2d Cir. 2008); see also 8 C.F.R. § 241.8. The Depa rtment of Homeland Security (“DHS”) must give the alien the opportunity to issue a formal oral or written statement contesting the immigration officer’s findings before reinstating the prior order of removal. 8 C.F.R. § 241.8(b). The alien has no right to a hearing befo re an IJ. 8 C.F.R. § 241.8(a).

Here, the IJ’s original order of deportation was reinstated in September 2013, preventing the IJ from granting Zheng’s November 2013 motion to reopen. Although Zheng argues that he did not receive proper notice of the reinstatement or der in accordance with due process, there is nothing to suggest that DHS did not follow the procedures outlined in 8 C.F.R. § 241.8, the constitutionality of which we have previously upheld. See Garcia-Villeda , 531 F.3d at 149-50.

Moreover, Zheng has never contested the dete rminations underlying the reinstatement order. “[W]hen an alien declines to challeng e at the agency level the findings that support reinstatement of a prior order of removal, he has no grounds to complain in court that the3 reinstatement procedures deprived him of due process of law.” Miller v. Mukasey , 539 F.3d 159, 164 (2d Cir. 2008). Although he argued that he di d not have proper notice of the reinstatement order before the IJ, Zheng has never contested that he (1) is the same person against whom the prior removal order had been entered; and (2) ha d unlawfully reentered the country.

Accordingly, because Zheng’s prior removal or der was properly reinstated, the IJ and BIA lacked jurisdiction to review that order or reopen proceedings. 8 U.S.C. § 1231(a)(5).

Indeed, the only relief available to Zheng af ter the reinstatement order was issued was withholding of removal and relief under the Convention Against Torture. See 8 C.F.R. §§ 208.31, 241.8(e). Zheng, however, withdrew his request for a reasonable fear interview to determine his eligibility for those forms of relief.

We decline to review Zheng’s argument that he was deprived of due process during the proceedings underlying his original order of depor tation. An alien may not collaterally attack an underlying deportation order during reinstatement proceedings. Miller , 539 F.3d at 164-65; GarciaVilleda , 531 F.3d at 150. Moreover, we must treat ea ch petition for review as challenging only the BIA decision from which it was timely filed. See Stone v. INS , 514 U.S. 386, 405 (1995); see also Ke Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 89-91 (2d Cir. 2001). The BIA’s decision did not review a challenge to Zheng’s underlying deportation proceedings; instead, it determined that the IJ correctly found that the agency lacked jurisdiction to review Zheng’s motion to reopen pursuant to 8 U.S.C. § 1231(a)(5).

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.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk