Case: 11-60468 Document: 00511775321 Page: 1 Date Filed: 03/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 2, 2012
No. 11-60468
Summary Calendar Lyle W. Cayce
Clerk
JUNLING LIU,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A098 378 234
Before DAVIS, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Junling Liu petitions for review of the Board of Immigration Appeals’s
(BIA) decision to dismiss her appeal of the Immigration Judge’s order denying
her second motion to reopen the removal proceeding.
We review the denial of a motion to reopen “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). The BIA’s decision will be upheld “so long as it is not capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so irrational
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-60468 Document: 00511775321 Page: 2 Date Filed: 03/02/2012
No. 11-60468
that it is arbitrary rather than the result of any perceptible rational approach.”
Id. at 304. (internal quotation marks and citations omitted).
Liu has not shown that the BIA abused its discretion in denying her
second motion to reopen the removal proceeding. Her eligibility for rescission
of the removal order is immaterial because her motion to reopen is numerically
barred, and the exceptions to the numerical bar are not applicable. See 8 C.F.R.
§ 1003.23(b)(1), (b)(4)(ii); 8 U.S.C. § 1229a(c)(7)(A), (C)(iv). Her arguments that
reopening is warranted due to ineffective assistance of counsel and her eligibility
for adjustment of status are in essence arguments that the BIA should have
exercised its discretion to reopen the removal proceeding sua sponte. See
Ramos-Bonilla v. Mukasey, 543 F.3d 216, 220 (5th Cir. 2008). We lack
jurisdiction to review the BIA’s wholly discretionary decision to refuse to reopen
the removal proceeding sua sponte. See id. at 219–20. To the extent that Liu
argues that the denial of the motion to reopen violated her right to due process,
she has no constitutionally protected interest in discretionary relief. See
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006).
Liu’s petition for review is DENIED IN PART and DISMISSED IN PART
for lack of jurisdiction.
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