Xiu Feng Zou v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1540
___________
XIU FENG ZOU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A098-255-780)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 4, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: February 8, 2010)
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OPINION
___________
PER CURIAM
Xiu Feng Zou petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the
reasons that follow, we will dismiss her petition for review.

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Zou, a native and citizen of China, entered the United States in May 2005 without
a valid entry document. She was placed into removal proceedings and, in response,
sought asylum, withholding of removal and relief under the Convention Against Torture.
Following a hearing, the IJ denied relief, determining that Zou’s testimony was not
credible and that she failed to provide sufficient supporting documentation. The BIA
agreed and dismissed the appeal. Zou filed a petition for review and a motion for a stay
of removal. The Attorney General opposed the motion to stay and requested that the
petition for review be dismissed.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. In her
petition for review, Zou, through counsel, raises only one claim: that the IJ failed to
forward her asylum application to the State Department in contravention of 8 C.F.R.
§ 208.11, thereby preventing her from corroborating her claim based on the State
Department’s observations. She maintains that we therefore have no option but to grant
the petition for review and remand for further proceedings. However, as Zou concedes,
this claim was not presented to the IJ or the BIA, and, therefore, is unexhausted. Due to
Zou’s failure to exhaust this claim, we lack jurisdiction to consider it. See 8 U.S.C. §
1252(d)(1); see also Kibinda v. Attorney Gen., 477 F.3d 113, 120 n.8 (3d Cir. 2007)
(requiring that petitioner raise and exhaust remedies as to each claim or ground for relief
before the BIA or IJ in order to preserve claim for petition for review); Joseph v. Attorney
Gen., 465 F.3d 123, 126 (3d Cir. 2006) (“An alien must exhaust all administrative

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Zou argues that, despite her failure to present this claim to the BIA, this Court should1
consider it to avoid “a manifest injustice.” The cases she cites do not support this
position and, even if they did, the record reflects that the IJ did in fact submit her asylum
application to the State Department. (A.R. 293.) Thus, even if we were to determine that
some equitable exception applied, her claim would be without merit. Additionally, we
note that Zou’s attorney has raised this argument several times in the past without
success. See, e.g., Kai-Rui Pan v. Mukasey, 314 Fed. Appx. 328, 329 (2d Cir. 2008); Ilic
v. Attorney Gen., 276 Fed. Appx. 182, 185 (3d Cir. 2008); Ljubanovic v. Attorney Gen.,
270 Fed. Appx. 129, 131-32 (3d Cir. 2008); Ghilduta v. Mukasey, 263 Fed. Appx. 111,
112 (2d Cir. 2008); Tchernycheva v. Attorney Gen., 230 Fed. Appx. 231, 236 (3d Cir.
2007). 3
remedies available to him as of right before the BIA as a prerequisite to raising a claim
before this Court.”).1
Based on the foregoing, we will dismiss the petition for review for lack of
jurisdiction. Zou’s motion for a stay of removal is denied.

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