LIU ZHISONG, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent, 381 F. App'x 120

SUMMARY ORDER Liu Zhisong, a native and citizen of the People’s Republic of China, seeks review of a February 17, 2009, order of the BIA affirming Immigration Judge (“IJ”) George T. Chew’s November 24, 2008, denial of his motion to reopen. In re Liu Zhisong, No. [ A XXX XXX XXX ] (B.I.A. Feb. 17, 2009), aff'g No. [ A XXX XXX XXX ] (Immig. Ct. N.Y. City Nov. 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case. We review the agency’s denial of Zhi-song’s motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).

An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Although Zhisong’s motion was indisputably untimely, there is no time or numerical limitation if the alien establishes materially “changed country conditions arising in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).

The BIA did not abuse its discretion in finding that the birth of Zhisong’s two U.S. citizen children constituted a change in his personal circumstances, rather than a change in country conditions sufficient to excuse the untimely filing of his motion to reopen. See Wei Guang Wang v. BIA, 487 F.3d 270, 274 (2d Cir.2006). Moreover, although Zhisong argues that “the landscape of the law applicable to [his motion to reopen] has sufficiently shifted,” and that “China’s application of its birth policies has shifted,” he submitted no evidence of changed country conditions with his motion.

See 8 C.F.R. § 1003.2(c)(1) (stating that “[a] motion to reopen proceedings ... shall be supported by affidavits or other evidentiary material”). The BIA also did not abuse its discretion in finding that Zhisong was not prejudiced by the IJ’s failure to address his argument that he had adjusted his status to that of a lawful permanent resident. See Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.2008) (holding that an alien must establish that he was prejudiced by the alleged error in order to prevail on a due process claim).

The BIA properly found that Zhisong failed to submit evidence sufficient to establish that he had adjusted his status, because “[a]n approved visa petition is merely a preliminary step in the visa application process,” and is therefore insufficient, without more, to establish lawful permanent residency. See Firstland, Intern., Inc. v. I.N.S., 377 F.3d 127, 129 n. 3 (2d Cir.2004) (internal citation omitted) Finally, the BIA did not abuse its discretion in holding that Zhisong was also not prejudiced by the IJ’s failure to address his claim that he was eligible for cancellation of removal.

As the BIA found, Zhisong was statutorily ineligible for that form of relief. Removal proceedings replaced deportation proceedings in immigration cases commenced on or after April 1,1997. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546 (enacted Sept. 30,1996) (“IIRIRA”). Because Zhisong’s proceedings commenced prior to the IIRIRA’s effective date, the provisions regarding cancellation of removal do not apply to him. See 8 U.S.C. § 1229b(b) (setting forth eligibility requirements for cancellation of removal); Escobar v.

Holder, 567 F.3d 466, 475 (9th Cir.2009) (“The possibility of cancellation only arises when removal proceedings have been initiated.”); see also Delegation of Authority to the Immigration and Naturalization Service to Terminate Deportation Proceedings and Initiate Removal Proceedings, 65 Fed.Reg. 71273, 71274 (proposed Nov. 30, 2000) (describing the administrative “repapering” procedure whereby aliens in deportation proceedings rendered ineligible for suspension of deportation by virtue of IIRIRA’s retroactive stop-time rule could seek termination of deportation proceedings and initiation of removal proceedings in order to apply for cancellation of removal).

Instead, Zhisong was required to seek suspension of deportation under 8 U.S.C. § 1254(a)(1) (repealed in 1996 with the enactment of IIRIRA), but failed to do so. See Arenas-Yepes v. Gonzales, 421 F.3d 111, 116-17 (2d Cir.2005) (holding that because petitioner’s proceedings commenced after the enactment of IIRIRA, petitioner was statutorily ineligible for suspension of deportation). For the foregoing reasons, the petition for review is DENIED. . In his brief, Zhisong appears to concede that he lost his status when his father divorced.