10-655-ag
Li v. Holder
BIA
A073 169 701
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.
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 23rd day of August, two thousand eleven.
PRESENT:
GUIDO CALABRESI,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_________________________________________
YUE PING LI,
Petitioner,
v. 10-655-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_________________________________________
FOR PETITIONER: Zhijun Liu, Flushing, New York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
John S. Hogan, Senior Litigation
Counsel; David H. Wetmore, Trial
Attorney, Office of Immigration
Litigation, United States Department of
Justice, Washington, D.C.
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 Yue Ping Li, a native and citizen of China,
seeks review of a December 31, 2009 decision of the BIA
denying her motion to reopen. In re Yue Ping Li, No. A073 169
701 (B.I.A. Dec. 31, 2009). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.
As an initial matter, we lack jurisdiction to consider
Li’s challenges to the IJ’s denial of asylum and withholding
of deportation because she has not timely petitioned for
review of that decision. See Luna v. Holder, 637 F.3d 85, 92
(2d Cir. 2011); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265
F.3d 83, 89-90 (2d Cir. 2001). Accordingly, only the BIA’s
denial of reopening, which is subject to a deferential abuse
of discretion review, is properly before us. See Jian Hui
Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008).
It is undisputed that Li’s 2009 motion to reopen was
untimely because the BIA’s order of deportation became final
in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R.
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§ 1003.2(c)(2). Although Li argues that the BIA should have
equitably tolled the time for filing her motion to reopen
because of ineffective assistance of her former counsel, she
does not dispute the BIA’s determination that she failed to
exercise due diligence in pursuing her ineffective assistance
of counsel claim. See Cekic v. INS, 435 F.3d 167, 170-71 (2d
Cir. 2006) (requiring alien to demonstrate due diligence
independent from requirement of establishing ineffective
assistance of counsel). Indeed, Li provides no explanation
for having waited two years to file her motion to reopen after
purportedly first learning of the BIA’s order of removal in
2007. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008)
(stating that alien must demonstrate due diligence during
“period of discovering counsel’s ineffectiveness” and “period
between such discovery and filing” of motion to reopen).
Accordingly, the BIA did not abuse its discretion in denying
Li’s motion as untimely, and this portion of the petition for
review is therefore denied.
To the extent Li urges that the BIA erred in declining
sua sponte to reopen her removal proceedings, we lack
jurisdiction to consider this “entirely discretionary”
decision. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
3
2006). Nevertheless, “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,” remand for “reconsideration in view
of the correct law is appropriate.” Mahmood v. Holder, 570
F.3d 466, 469 (2d Cir. 2009). Li here urges that the BIA
declined sua sponte to reopen her removal proceedings because
it erroneously determined that she was statutorily barred from
adjusting status for failure to comply with the agency’s
voluntary departure order. Li’s argument is without merit.
An alien who fails to depart within a specified voluntary
departure period “shall be ineligible, for a period of 10
years,” for adjustment of status. 8 U.S.C. § 1229c(d); see
Harjinder Singh v. Gonzales, 468 F.3d 135, 139 (2d Cir. 2006).
Because Li did not voluntarily depart within the specified
period, the BIA did not err in concluding that she is
statutorily ineligible for adjustment of status.
Dada v. Mukasey, 554 U.S. 1 (2008), relied upon by Li,
does not mandate a different result. In that case, the
Supreme Court held that “to safeguard the right to pursue a
motion to reopen . . . [an] alien must be permitted to
withdraw, unilaterally, a voluntary departure request before
4
expiration of the departure period.” Id. at 21. This holding
is of no help to Li, who never sought to withdraw her
voluntary departure request. Contrary to Li’s contention,
nothing in Dada suggests that her appeal to the BIA
automatically effectuated such a withdrawal.
Moreover, the agency’s new voluntary departure
regulations, which automatically terminate a grant of
voluntary departure when an alien files a motion to reopen or
reconsider prior to the expiration of the voluntary departure
period, see 8 C.F.R. § 1240.26(e)(1), are irrelevant here
because they apply only to cases in which voluntary departure
was granted or reinstated on or after January 20, 2009, see
Voluntary Departure: Effect of a Motion to Reopen or
Reconsider or a Petition for Review, 73 Fed. Reg. 76,927,
76,936 (Dec. 18, 2008). In any event, these regulations do
not apply to Li because she filed her motion to reopen after
the expiration of her voluntary departure period. See 8
C.F.R. § 1240.26(e)(2). Accordingly, Li has not demonstrated
that the BIA’s decision declining to sua sponte reopen her
proceedings was based on a misperception of the law requiring
remand, and the petition for review is dismissed for lack of
jurisdiction to the extent it challenges that decision. See
Mahmood, 570 F.3d at 469.
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For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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