10-2678-ag
Zhe Nong Zou v. Holder
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 14th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JON O. NEWMAN,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 Zhe Nong Zou,
14 Petitioner,
15
16 -v.- 10-2678-ag
17
18 Eric Holder, Jr., United States
19 Attorney General
20 Respondent.
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22
23
24 FOR PETITIONER: Jeffrey Nguyen, Thomas F.
25 Williams, & Assoc., P.C.,
26 Quincy, Massachusetts.
27
1
1 FOR RESPONDENT: Kevin Conway, Office of
2 Immigration Litigation, Civil
3 Division, United States
4 Department of Justice,
5 Washington D.C. (Tony West,
6 Assistant Attorney General;
7 Allen W. Hausman, Senior
8 Litigation Counsel; Ann Carroll
9 Varnon, Civil Division, Office
10 of Immigration Litigation,
11 United States Department of
12 Justice, Washington D.C. on the
13 brief).
14
15 Petition for review from a decision of the Board of
16 Immigration Appeals.
17
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19 AND DECREED that the petition for review is DENIED, in part,
20 and DISMISSED, in part.
21
22 Petitioner Zhe Nong Zou filed a petition for review,
23 challenging the decision of the Board of Immigration Appeals
24 (“BIA”) declining to reopen his immigration proceeding so
25 Zou could seek a suspension of deportation under 8 U.S.C. §
26 1254(a)(1) (repealed 1996). We assume the parties’
27 familiarity with the underlying facts, the procedural
28 history, and the issues presented for review.
29
2
1 [1] We review the BIA’s decision denying Zou’s motion to
2 reopen for abuse of discretion. Kaur v. Bd. of Immig.
3 Appeals, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). The
4 BIA did not abuse its discretion in denying Zou’s motion to
5 reopen. As relevant here, a motion to reopen must be filed
6 no later than 90 days after the proceeding has been closed.
7 8 U.S.C. § 1229a(c)(7); 8 C.F.R. §§ 1003.2(c)(2),
8 1003.23(b)(1). Zou’s original immigration proceeding
9 concluded when the BIA dismissed his appeal on March 25,
10 2002. Zou did not move to reopen that proceeding until
11 April 23, 2010, more than eight years later. Accordingly,
12 the BIA did not abuse its discretion in denying Zou’s
13 motion.
14
15 [2] Zou also argues that the BIA erred in not reopening his
16 immigration proceeding under the BIA’s sua sponte authority.
17 See 8 C.F.R. § 1003.2(a) (providing that the BIA “may at any
18 time reopen . . . on its own motion any case in which it has
19 rendered a decision.”). This Court generally lacks
20 jurisdiction to review a BIA decision declining to sua
21 sponte reopen a removal or deportation proceeding. Ali v.
22 Gonzales, 448 F.3d 515, 518 (2d Cir. 2006) (per curiam).
3
1 Such a decision is placed “‘[solely] within the discretion
2 of the’” BIA. Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.
3 2009) (as amended) (quoting Ali, 448 F.3d at 518)
4 (alteration in Mahmood). The BIA may decline to exercise
5 its sua sponte authority to reopen a proceeding “even if the
6 party moving has made out a prima facie case for relief.” 8
7 C.F.R. § 1003.2(a).
8 Zou asserts that this Court has jurisdiction because
9 the BIA’s decision may have been based on an error of law
10 regarding his eligibility for suspension, and we have
11 authority to review such a legal question. See Mahmood, 570
12 F.3d at 469. This is not so. The BIA declined to exercise
13 its sua sponte authority because Zou failed to demonstrate
14 exceptional circumstances warranting the exercise of such
15 discretion. The passage that Zou identifies as legal error
16 does not bear upon the BIA’s discussion of its sua sponte
17 authority; it relates solely to the untimeliness of his
18 motion to reopen.
19 Finding no merit in Zou’s remaining arguments, we
20 hereby DENY, in part, and DISMISS, in part, Zou’s petition
21 for review.
22
23 FOR THE COURT:
24 CATHERINE O’HAGAN WOLFE, CLERK
25
4