Wen Zheng Zheng v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1126
WEN ZHENG ZHENG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A070-010-027)
Immigration Judge: Honorable Charles M. Honeyman
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 16, 2009
Before: AMBRO, CHAGARES and ALDISERT, Circuit Judges
(Opinion filed: December 29, 2009)
OPINION
PER CURIAM
Wen Zheng Zheng petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen. For the reasons that follow, we will deny
his petition for review.

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While it does not make any difference to the outcome in this case, the motion was1
dated May 10, 2006. It is not clear what transpired in the interim.
2
I.
Zheng, a native and citizen of China, entered the United States in the early 1990's.
He was placed into removal proceedings, and thereafter sought asylum, withholding of
removal, and relief under the Convention Against Torture, all of which were denied by
the immigration judge (“IJ”) on January 26, 2005. The Board of Immigration Appeals
issued a final order of removal on December 13, 2005. It does not appear that petitioner
filed a petition for review at that time.
On December 27, 2005, petitioner’s ex-wife, Ms. Lu, from whom he was divorced
in 1999, was granted asylum. Petitioner alleges that he became aware of the grant of
asylum to his ex-wife in late February 2006. He then visited his former attorney on
March 9, 2006, at which time he was informed that he could file a motion to reopen
within 90 days of the BIA’s final order of removal; in his case, on or before March 13,
2006. On Monday, March 13, petitioner met with his ex-wife’s attorney, who reportedly
informed him that his ex-wife’s asylum claim had nothing to do with his case and that, in
any event, it was too late to prepare and file a motion to reopen. On March 15, 2006,
petitioner retained present counsel, who prepared and filed a motion to reopen on his
behalf. The motion was filed on June 13, 2006, and requested that the BIA reopen1

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8 C.F.R. § 1003.2(c)(3)(iii) provides that the 90-day time limit shall not apply to a2
motion to reopen that is “[a]greed to by all parties and jointly filed.” While petitioner did
request that the Government join the motion, the Government declined to do so.
3
petitioner’s removal proceedings pursuant to 8 C.F.R. § 1003.2(c)(3)(iii). Petitioner2
further claimed that the 90-day limitation period should be equitably tolled, as the failure
to meet the deadline was due to circumstances out of his control and he exercised due
diligence to promptly file the motion.
On December 19, 2006, the BIA issued an order holding that the motion to reopen
was untimely, see 8 C.F.R. § 1003.2(c)(2), that petitioner failed to demonstrate that a
regulatory exception to the time bar applied, see 8 C.F.R. § 1003.2(c)(3), and that he
failed to make a case for the application of equitable tolling, citing Iavorski v. INS, 232
F.3d 124, 129-35 (2d Cir. 2000). “J.A. 70.” Furthermore, the BIA declined to consider
his motion to reopen sua sponte. See 8 C.F.R. § 1003.2(a). Accordingly, the BIA denied
petitioner’s motion to reopen. Through counsel, Zheng timely filed a petition for review.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C. § 1252. We
review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v.
Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will reverse
the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002) (internal quotations omitted).
III.

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4
Zheng’s motion to reopen was clearly untimely. See 8 C.F.R. § 1003.2(c)(2).
While he appears to concede this, he argues that the BIA abused its discretion in refusing
to equitably toll the filing deadline. He maintains that the filing deadline may be
equitably tolled when a party has exercised due diligence and the circumstances
preventing the party from timely filing were beyond his control. The Government
responds that the BIA acted well within its discretion as Zheng failed to provide any
material evidence in support of equitable tolling and never alleged that he was prevented
from filing a timely motion to reopen due to fraud.
Most U.S. Courts of Appeals, including this one, have recognized the availability
of equitable tolling in immigration proceedings under certain limited circumstances. See,
e.g., Fustaguio Do Nascimento v. Mukasey, 549 F.3d 12, 18 (1st Cir. 2008) (time period
may be extended “in exceptional circumstances”); Barry v. Mukasey, 524 F.3d 721, 724
(6th Cir. 2008) (“[D]elay in filing the motion to reopen [must be] due to an exceptional
circumstance beyond his control.”) (internal quotations omitted); Borges v. Gonzales, 402
F.3d 398, 406 (3d Cir. 2005) (applying the “‘old chancery rule’” for equitable tolling on
the basis of fraud); Singh v. Ashcroft, 367 F.3d 1182, 1185-86 (9th Cir. 2004)
(recognizing application of “equitable tolling of deadlines . . . during periods when a
petitioner is prevented from filing because of deception, fraud, or error, as long as the
petitioner acts with due diligence in discovering the deception, fraud, or error”) (internal
quotations omitted); Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 2001) (“[E]quitable tolling ‘is

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5
appropriate only when the circumstances that cause a [party] to miss a filing deadline are
out of his hands’”) (quoting Salois v. Dime Savings Bank, 128 F.3d 20, 25 (1 Cir.st
1997)); Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000) (“In a situation where fraud or
concealment of the existence of a claim prevents an individual from timely filing,
equitable tolling of a statute of limitations is permitted until the fraud or concealment is,
or should have been, discovered by a reasonable person in the situation.”). Even
assuming that Zheng acted with the requisite diligence in pursuing his motion to reopen,
he still must demonstrate that some external force prevented him from timely filing his
motion. Based on the evidence in the record, we cannot conclude that the BIA abused its
discretion in concluding that Zheng failed to meet this standard.
The remainder of Zheng’s arguments are directed to the underlying merits of his
case. Because we defer to the BIA’s determination that Zheng’s motion to reopen was
not timely filed, we have no occasion to reach these arguments at the present time.
Based on the foregoing, we deny the petition for review.

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