09-4526-ag
Chen v. Holder
BIA
A070 505 347
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 17th day of February, two thousand eleven.
PRESENT:
JOSEPH M. McLAUGHLIN,
ROBERT A. KATZMANN,
PETER W. HALL,
Circuit Judges.
_______________________________________
BAO LING CHEN,
Petitioner,
v. 09-4526-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES,
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Nathan Weill, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; Kelly J. Walls, Trial
Attorney, Office of Immigration
Litigation, Civil Division, United
States Department of Justice,
Washington, DC
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED in part and DISMISSED in part.
Petitioner Bao Ling Chen, a native and citizen of
China, seeks review of an October 5, 2009 order of the BIA
denying his motion to reopen. In re Bao Ling Chen, No. A070
505 347 (B.I.A. Oct. 5, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). The BIA entered the final administrative
order on April 26, 1999, and Chen did not file his motion to
reopen until August 6, 2009. Chen argues that the BIA
abused its discretion in declining to excuse the 90-day
filing deadline applicable to his motion to reopen.
However, Chen failed to address the issue of the timeliness
of his motion, and his eligibility for an adjustment of
status does not constitute an exception to the applicable
time limitation on motions to reopen. See 8 U.S.C.
§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter
of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing
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“that untimely motions to reopen to pursue an application
for adjustment of status . . . do not fall within any of the
statutory or regulatory exceptions to the time limits for
motions to reopen before the Board”). Accordingly, we find
no abuse of discretion in the BIA’s denial of Chen’s motion
to reopen.
Moreover, we lack jurisdiction to consider Chen’s
argument that the BIA should have exercised its authority to
reopen sua sponte his exclusion proceedings based on the
regulations that now permit Chen to pursue statutorily an
adjustment of status. The BIA’s determination as to whether
it will exercise its authority to reopen proceedings sua
sponte is entirely discretionary and thus beyond the scope
of our jurisdiction. See Ali, 448 F.3d at 518. Although
remand may be appropriate “where the Agency may have
declined to exercise its sua sponte authority because it
misperceived the legal background and thought, incorrectly,
that a reopening would necessarily fail,” Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009), there is no indication
here that the BIA misperceived the law in declining to
reopen proceedings sua sponte, see Matter of Yauri, 25 I. &
N. Dec. at 110-12 (holding that Agency ordinarily lacks
discretion to reopen untimely motions pending adjudication
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of applications for adjustment of status and thus concluding
that an arriving alien’s eligibility for adjustment of
status did not present exceptional circumstances warranting
sua sponte reopening).
For the foregoing reasons, the portion of the petition
for review of the BIA’s denial of Chen’s motion to reopen is
DENIED and the portion of the petition for review of the
BIA’s decision not to exercise its sua sponte authority to
reopen Chen’s exclusion proceedings is DISMISSED. As we
have completed our review, the pending motion for a stay of
removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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