16-1137
Dong v. Sessions
BIA
A077 993 626
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of July, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 LI PING DONG, AKA SANDY MIKYUNG
14 CHO,
15
16 Petitioner,
17
18 v. 16-1137
19 NAC
20
21 JEFFERSON B. SESSIONS III, UNITED
22 STATES ATTORNEY GENERAL,
23
24 Respondent.
25 _____________________________________
26
27
28 FOR PETITIONER: Meer M. M. Rahman, New York, NY.
29
1 FOR RESPONDENT: Chad A. Readler, Acting Assistant
2 Attorney General; Anthony P.
3 Nicastro, Assistant Director; D.
4 Nicholas Harling, Trial Attorney,
5 Office of Immigration Litigation,
6 United States Department of Justice,
7 Washington, DC.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DISMISSED.
13 Petitioner Li Ping Dong, a native and citizen of the
14 People’s Republic of China, seeks review of a March 17, 2016,
15 decision of the BIA denying her motion to reopen. In re Li Ping
16 Dong, No. A077 993 626 (B.I.A. Mar. 17, 2016). We assume the
17 parties’ familiarity with the underlying facts and procedural
18 history in this case.
19 “We review the denial of motions to reopen immigration
20 proceedings for abuse of discretion.” Ali v. Gonzales, 448
21 F.3d 515, 517 (2d Cir. 2006). The BIA denied reopening on two
22 grounds. Dong does not dispute that her motion—her second
23 request to reopen filed twelve years after her removal order—was
24 untimely and number-barred. 8 U.S.C. § 1229a(c)(7)(A),
25 (C)(i); 8 C.F.R. § 1003.2(c)(2). Nor does she dispute that an
2
1 application for adjustment of status does not fall into any
2 exception to those limits. See Matter of Yauri, 25 I. & N. Dec.
3 103, 105 (B.I.A. 2009) (“[E]mphasiz[ing] that untimely motions
4 to reopen to pursue an application for adjustment of
5 status . . . do not fall within any of the statutory or
6 regulatory exceptions to the time limits for motions to reopen
7 before the Board.”).
8 Thus, Dong’s request necessarily invoked the BIA’s
9 authority to reopen her proceedings sua sponte. See Mahmood
10 v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s
11 untimely motion to reopen was not excused by any regulatory
12 exception, his motion to reopen could only be considered upon
13 exercise of the Agency’s sua sponte authority.”); see also 8
14 C.F.R. § 1003.2(a). The BIA’s determination as to whether it
15 will exercise its sua sponte authority “is entirely
16 discretionary” and thus beyond the scope of our jurisdiction.
17 See Ali, 448 F.3d at 518. Although we may remand if the BIA
18 declines to reopen sua sponte “because it misperceived the legal
19 background and thought, incorrectly, that a reopening would
20 necessarily fail,” Mahmood, 570 F.3d at 469, the BIA’s decision
21 does not reflect any such misperception.
3
1 Petitioner’s reliance on Sheng Gao Ni v. Board of
2 Immigration Appeals, 520 F.3d 125 (2d Cir. 2008), is misplaced.
3 In Sheng Gao Ni, we remanded because the BIA incorrectly assumed
4 that the petitioners sought to have the BIA adjudicate their
5 adjustment of status applications, rather than continue
6 proceedings. 520 F.3d at 130. Dong’s adjustment application
7 has already been denied, and thus there was no basis for a
8 continuance. Moreover, here, the BIA did not conclude that it
9 lacked jurisdiction; it simply found that Dong did not establish
10 exceptional circumstances that would warrant reopening. Dong
11 does not identify any basis to challenge this dispositive
12 determination.
13 For the foregoing reasons, the petition for review is
14 DISMISSED.
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
4