Xuming Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 11, 2022
• Docket: 20-73556
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

XUMING ZHANG, No. 20-73556

Petitioner, Agency No. A072-765-901

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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). 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).

2 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

3 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).

4 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.