09-4136-ag
Lin v. Holder
BIA
A095 381 951
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 4 th day of October, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 ______________________________________
13
14 ZHONGYU LIN,
15 Petitioner,
16 09-4136-ag
17 v. NAC
18
19 UNITED STATES DEPARTMENT OF JUSTICE and
20 ERIC H. HOLDER, JR., U.S. ATTORNEY
21 GENERAL,
22 Respondents.
23 ______________________________________
24
25 FOR PETITIONER: Dehai Zhang, Flushing, New York.
26
27
28 FOR RESPONDENTS: Tony West, Assistant Attorney
29 General, Civil Division; Michelle
30 Gorden Latour, Assistant Director;
31 Jessica E. Sherman, Trial Attorney,
1 Office of Immigration Litigation,
2 Civil Division, United States
3 Department of Justice, Washington,
4 DC
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED in part and DISMISSED in part.
10 Zhongyu Lin, a native and citizen of the People’s
11 Republic of China, seeks review of a September 23, 2009,
12 order of the BIA denying her motion to reopen. In re
13 Zhongyu Lin, No. A095 381 951 (B.I.A. Sept. 23, 2009). We
14 assume the parties’ familiarity with the underlying facts
15 and procedural history of the case.
16 We review the BIA’s denial of Lin’s motion to reopen
17 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
18 (2d Cir. 2006). According to Lin, 8 U.S.C. § 1229a(c)
19 (7)(C)(ii) implies that the timely filing of her first
20 motion to reopen preserved her right to file a later motion
21 to reopen, regardless of any time and numerical limitations
22 that would otherwise apply. To the contrary, an alien may
23 only file a single motion to reopen and must do so within
24 ninety days of the final administrative decision.
25 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). Lin’s
2
1 August 2009 motion to reopen was filed seven years after the
2 IJ’s June 2002 in absentia removal order became final.
3 Lin argues that the BIA abused its discretion in
4 declining to excuse the ninety-day filing deadline for her
5 motion to reopen. However, eligibility to adjust status
6 does not constitute an exception to the applicable time
7 limitation on motions to reopen. See 8 U.S.C.
8 § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter
9 of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing
10 “that untimely motions to reopen to pursue an application
11 for adjustment of status . . . do not fall within any of the
12 statutory or regulatory exceptions to the time limits for
13 motions to reopen before the Board”). Moreover, because
14 Lin’s motion was untimely, her argument that reopening was
15 warranted under In re Velarde-Pacheco, necessarily fails.
16 See 23 I. & N. Dec. 253, 256 (BIA 2002)(permitting the
17 agency to reopen an alien’s removal proceedings to allow
18 them to apply to adjust status based on marriage to a U.S.-
19 citizen only when the motion to reopen was “timely filed”).
20 The BIA therefore did not abuse its discretion in denying
21 Lin’s untimely motion to reopen, and we deny the petition
22 for review to this extent. See Ali, 448 F.3d at 517.
3
1 Finally, we lack jurisdiction to consider Lin’s
2 argument that the BIA erroneously determined that she failed
3 to demonstrate exceptional circumstances warranting
4 reopening her proceedings sua sponte. The BIA’s
5 determination as to whether it will exercise its sua sponte
6 authority is entirely discretionary and thus beyond the
7 scope of our jurisdiction. See id. at 518. Although remand
8 may be appropriate “where the Agency may have declined to
9 exercise its sua sponte authority because it misperceived
10 the legal background and thought, incorrectly, that a
11 reopening would necessarily fail,” Mahmood v. Holder, 570
12 F.3d 466, 469 (2d Cir. 2009), there is no indication here
13 that the BIA misperceived the law in declining to reopen
14 proceedings sua sponte.
15 For the foregoing reasons, the petition for review is
16 DENIED in part and DISMISSED in part. As we have completed
17 our review, any pending motion for a stay of removal in this
18 petition is DISMISSED as moot. Any pending request for oral
19 argument in this petition is DENIED in accordance with
20 Federal Rule of Appellate Procedure 34(a)(2) and Second
21 Circuit Local Rule 34.1(b).
22 FOR THE COURT:
23 Catherine O’Hagan Wolfe, Clerk
24
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