United States Court of Appeals
For the First Circuit
No. 05-2836
HONG MEI ZHANG,
Petitioner,
v.
ALBERTO GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
Kevin R. Murphy, on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Terri J.
Scadron, Assistant Director, and Siu Wong, Attorney, Office of
Immigration Litigation, U.S. Department of Justice, on brief for
respondent.
November 22, 2006
CYR, Senior Circuit Judge. In 1995, Hong Mei Zhang, a
native and citizen of the People’s Republic of China, overstayed
her visa, was placed in deportation proceedings, and filed an
application for asylum based on her contention that she had been
persecuted as an active participant in China’s pro-democracy
student groups. Finding her testimony uncreditworthy, an
immigration judge (IJ) denied the asylum application, and granted
her voluntary departure effective August 21, 1996. In April 1997,
the Board of Immigration Appeals (BIA) affirmed.
In May 2002, Zhang filed an untimely motion with the BIA
to reopen her deportation case sua sponte. See 8 C.F.R. §
1003.2(a). Zhang noted that, following her previous deportation
hearing, Congress changed immigration law to make “forced
abortion/sterilization” a potential form of “persecution” under the
asylum statute, and she asserted that the Chinese government had
forced her to undergo an abortion in 1991. Zhang claimed that she
did not mention this abortion in her 1995 asylum application
because her attorney recommended against doing so, and because she
could not face a resumption of the psychological trauma which that
memory triggered. The BIA exercised its sua sponte discretion to
reopen the Zhang case, and remanded it to an IJ for decision.
At a hearing in July 2004, the IJ asserted that she found
it suspicious that Zhang had failed to mention the coerced abortion
in her 1995 asylum petition, and warned Zhang and her counsel
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regarding the consequences of filing a frivolous asylum petition.
The IJ recessed to permit Zhang to consult with her attorney. When
court reconvened, Zhang withdrew her asylum application and sought
voluntary departure. The IJ fixed January 29, 2005, as the date
for voluntary departure.
On January 28, 2005, one day before her scheduled
voluntary departure, Zhang submitted a second untimely motion, this
time with the IJ, requesting the reopening of her deportation case
sua sponte. Zhang contended that she involuntarily withdrew her
asylum petition at the July 2004 hearing because she misunderstood
her attorney’s advice, and did not comprehend that her acceptance
of voluntary departure would waive the asylum claim based on her
forced abortion. Relying on the fact that the court had adequately
informed Zhang of her rights at the July 2004 hearing, and that
Zhang was represented by counsel and provided with a Chinese
interpreter, the IJ declined to exercise her discretion to reopen
Zhang’s case sua sponte. After the BIA affirmed the denial, Zhang
submitted this petition for review, reiterating the same arguments
raised in her second motion to reopen.
We lack jurisdiction to entertain the Zhang petition for
review. Her second motion to reopen, suspiciously filed only one
day prior to her voluntary departure date, was untimely. See,
e.g., 8 C.F.R. § 1003.2(c)(2) (providing that motions to reopen
normally must be filed within 90 days of the final administrative
decision in the case). Thus, the BIA and the IJ had plenary
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discretion to determine whether to grant the Zhang motion to reopen
sua sponte, 8 C.F.R. §§ 1003.2(a) (defining BIA’s authority to
reopen); 1003.23(b) (defining IJ’s authority); see, e.g., Prado v.
Reno, 198 F.3d 286, 292 (1st Cir. 1999) (observing that “‘the
decision of the BIA whether to invoke its sua sponte authority [to
grant an untimely motion to reopen] is committed to its unfettered
discretion’ . . . and is simply not justiciable”) (quoting Luis v.
INS, 196 F.3d 36, 40 (1st Cir. 1999)). Thus, the BIA and the IJ
could deny the motion even if the Zhang motion to reopen stated a
prima facie case for relief, 8 C.F.R. §§ 1003.2(a); 1003.23(b)(3);
see Luis, 196 F.3d at 41 (“There are no guidelines or standards
which dictate how and when the BIA should invoke its sua sponte
power under [section 1003.2(a)].”).1 By its very nature,
therefore, denial of such discretionary relief is unreviewable.
The petition for review is dismissed for want of
appellate jurisdiction.
1
Even if we had jurisdiction (which we plainly do not), the IJ
arguably gave several plausible grounds for denying the Zhang
motion: Zhang, who was represented by counsel and was provided
with a Mandarin interpreter at the July 2004 hearing, never
informed the IJ that she had trouble understanding her interpreter,
and told the IJ that she understood his explanation as to the
consequences of the voluntary departure order. In addition, the
BIA notified Zhang in July 2005 that transcripts are not prepared
for appeals from an IJ’s decision denying a motion to reopen, and
that if she wanted a transcript prepared, she must make an express
request in her brief to the BIA. As she made no such request, the
record contains no transcripts, and we would have no reliable basis
for reviewing the IJ’s stated grounds for denying the Zhang motion.
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