Ru Cheng Zhang v. U.S. Attorney General

221 F. App'x 828
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 14, 2007
Docket06-14709
StatusUnpublished

This text of 221 F. App'x 828 (Ru Cheng Zhang v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ru Cheng Zhang v. U.S. Attorney General, 221 F. App'x 828 (11th Cir. 2007).

Opinion

PER CURIAM:

Ru Cheng Zhang, a native and citizen of China, petitions for review of the BIA’s dismissal of his appeal from the IJ’s denial of his motion to reopen. Zhang arrived in the United States on August 4,1994. That same year he filed an asylum application, claiming he had been persecuted in China because of his religious beliefs. In 1997, Zhang withdrew his asylum application with prejudice and was granted voluntary departure. However, he failed to leave the country and filed a motion to reopen his deportation proceedings in 1999, seeking withholding of deportation because he was now married and he and his wife were expecting their first child, in violation of Chinese family planning policies. The IJ granted the motion to reopen as to the prospective family planning claim.

*830 An asylum hearing was held on April 1, 2005, and the IJ informed Zhang that he should file an application for cancellation of removal by a certain date and instructed him to appear for an individual hearing on June 2, 2006. The deadline for filing the application for cancellation was not set out in the written order and we do not have a transcript of the hearing. Zhang claims that he thought he had until the end of August to file an application; the government claims the filing deadline was August 1, 2005. Regardless, on August 5, 2005, the IJ dismissed Zhang’s case because he had failed to file an application for cancellation of removal and had no pending applications before the immigration court. Zhang failed to appeal that dismissal.

But on October 31, 2005, Zhang filed a motion to reopen, claiming that (1) medical problems prevented him from timely filing an application for cancellation of removal; (2) he believed that the application was not due until the end of August; and (3) he thought that his original asylum application was still pending. Zhang sought relief, arguing that he or his wife could face forced sterilization in China because they had violated China’s family planning policies by having three children. The IJ denied the motion, finding that no exceptional circumstances for reopening the case existed and that Zhang did not qualify for cancellation of removal under the INA. Zhang appealed to the BIA. The BIA dismissed his appeal, finding that (1) Zhang’s challenge to the IJ’s August 5, 2005 decision was untimely; and that (2) his claim that he never had a hearing on his previous asylum application was without merit because he failed to diligently pursue that claim after it was reopened in 1999 and has delayed for more than five years in filing an application for relief from deportation. Zhang subsequently filed this appeal.

Zhang now argues that the BIA erred in dismissing his appeal because the IJ relied on the wrong legal standard (“exceptional circumstances for reopening”) in its order denying his motion to reopen. He claims that he meets the applicable “reasonable likelihood” standard because he and his wife are in violation of Chinese policy. He also argues that his due process rights were violated because (1) he did not receive notice of a deadline for filing an application for cancellation of removal; and (2) he was denied a full and fair hearing on his asylum claim.

When the BIA issues a decision, we review only that decision, except to the extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, the BIA issued its own decision, so we consider only that decision.

We review the BIA’s denial of a motion to reopen and a motion to reconsider for abuse of discretion. Gbaya v. United States Att’y Gen., 342 F.3d 1219, 1220 (11th Cir.2003) (addressing motions to reopen); Assa’ad v. United States Att’y Gen., 332 F.3d 1321, 1341 (11th Cir.2003) (addressing motions to reconsider). The BIA abuses its discretion when it reaches its decision “in an arbitrary or irrational manner.” Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th Cir.1982). We review de novo constitutional challenges. Lonyem v. United States Att’y Gen., 352 F.3d 1338, 1341 (11th Cir.2003).

If an alien fails to exhaust all administrative remedies available to him, we lack jurisdiction to review the final order of removal. 8 U.S.C. § 1252(d)(1); Al Najjar, 257 F.3d at 1283 n. 12. We also “lack[] jurisdiction to consider a claim which has not first been presented to the Board.” Asencio v. INS, 37 F.3d 614, 615-16 (11th Cir.1994). However, we re *831 tain jurisdiction to review constitutional issues. 8 U.S.C. § 1252(a)(2)(D).

Motions to reconsider and motions to reopen are generally disfavored, especially in a removal proceeding, “where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 724-25, 116 L.Ed.2d 823 (1992). A motion to reconsider must be filed within 30 days of the BIA’s final decision, 8 C.F.R. § 1003.2(b)(2), and “shall state the reasons for the motion by specifying the errors of fact or law in the prior [IJ or BIA] decision and shall be supported by pertinent authority.” Id. § 1003.2(b)(1).

When an alien is found removable and was present at the removal hearing, a motion to reopen must be filed within 90 days of the IJ’s or BIA’s final decision. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). In a motion to reopen, the petitioner must show (1) there is new evidence; and (2) that new evidence is material, was unavailable, and could not have been discovered or presented at the former hearing. See 8 C.F.R. § 1003.2(c)(1). Furthermore, a motion to reopen may be granted only if the alien demonstrates that he is statutorily eligible for relief. 8 C.F.R. § 1003.23(b)(3).

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221 F. App'x 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ru-cheng-zhang-v-us-attorney-general-ca11-2007.