NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 11 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT XUMING ZHANG, No. 20-73556 Petitioner,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327 F.3d 887, 889 (9th Cir. 2003). 2 We do not accord Chevron deference to the BIA’s decision because it is “an unpublished disposition, issued by a single member of the BIA.”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 …
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