* Pursuant to F ederal Rule ofAppellate Pro cedure

43(c)(2), Atto rney General A lberto Gonzale s is substitut ed for his predec essor, Attorne y General JohnAshcroft, as respondent. 04-1389-ag Chen v. Go

nzales UNITED STATES COURT OF APPEA LS 1 2 FOR THE SECONDCIRCUIT 3 4 August Term, 2 006 5 6 7 (Argued: June 15, 2007 Deci ded: June 25, 2007) 8 9 Docket No. 04- 1389-ag 10 11 - - - - - - - - - - - - - - - - - - - -x 12 13 ZHAO QUAN CHEN , 14 15 Petitioner , 16 17 -v.- 18 19 ALBERTO GONZAL ES, Attorney G eneral , * 20 21 Respondent . 22 23 - - - - - - - - - - - - - - - - - - - -x 24 25 Before: JACOBS, Chief Judge , SOTOMAYOR, a nd 26 WESLEY, Circuit Judges . 27 28 Petition for r eview of a fin al decision an d order of 29 the Board of I mmigration App eals denying p etitioner’s mo tion 30 for reconsider ation of the denial of petit ioner’s motionto 31 reopen. 32 Petition denie d. 332 Norman Kwai Wi ng Wong , New York, 1 NY, for Petitioner . 2 3 MICHAEL J. EDNEY, United States 4 Department of Justice, Office of 5 Legal Counsel (Fred T. Hinrichs, 6 Assistant United States 7 Attorney, Donald J. DeGabrielle, 8 Jr., United States Attorney for 9 the Southern District of Texas, 10 Houston, TX, on the brief ), for 11 Respondent . 12 13 PER CURIAM : 14 15 Zhao Quan Chen , a native and citizen of Ch ina, seeks 16 review of a Ma rch 5, 2004 or der of the Boa rd of Immigrat ion 17 Appeals (“BIA” ) denying his motion to reco nsider the BIA ’s 18 January 6, 200 4 denial of th e motion to re open his 19 immigration pr oceedings. 20 This Court ear lier denied Ch en’s petition for review 21 from the BIA’s November 9, 1 999 decision a ffirming the I J’s 22 denial of a mo tion to reopenproceedings i n which a 23 deportation or der was issued against Chen in absentiaafter 24 Chen failed toappear at his hearing. See Zhao Quan Chenv. 25 INS , 85 F. App’x 223 (2d Cir. 2 003). On October 9, 2003, 26 soon before th is Court issue d its decision , Chen filed a 27 motion to reop en with the BI A, on the prem ise that, afte r 28 the BIA’s 1999decision, theINS approved an I-140 petit ion 29 filed by Chen’ s employer on his behalf. T he BIA denied 303

Chen’s motion to reopen as u ntimely becaus e it was filed 1 more than 90 days after the issuance of th e BIA’s final 2 decision in 19 99. See 8 C.F.R. § 10 03.2(c)(2). C hen argued 3 in his motion to reconsider- -and argues ag ain here--in t he 4 alternative (1 ) that his pen ding petition for review bef ore 5 this Court ren dered the BIA’ s decision non -final, and 6 therefore the 90-day period had not yet be gun to run; (2 ) 7 that his pendi ng petition fo r review befor e this Court 8 equitably toll ed the 90-day period; or (3) that the BIA 9 should have gr anted the moti on on humanita rian grounds 10 notwithstandin g its untimeli ness. 11 The BIA’s deni al of a motionto reopen or reconsider is 12 reviewed for abuse of discre tion. See Jin Ming Liu v . 13 Gonzales , 439 F.3d 109 , 111 (2d Cir. 2006). The B IA abuses 14 its discretionif it acts arbitrarily or c apriciously, t hat 15 is, when it pr ovides no rati onal explanati on, departs fr om 16 established po licies withoutexplanation, or justifies i ts 17 decision with only conclusor y statements. See Kaur v. BIA , 18 413 F.3d 232, 234 (2d Cir. 2 005) (per curi am). Here theBIA 19 acted well wit hin its discre tion. 20 With some exce ptions not rel evant here, a motion to 21 reopen “shall be filed withi n 90 days of t he date of ent ry 224

of a final adm inistrative or der of removal .” 8 U.S.C. § 1 1229a(c)(7)(C) (i). See also8 C.F.R. § 10 03.2(c)(2). 2 Chen’s motion to reopen was therefore late --by approxima tely 3 three years an d eight months . 4 Chen’s argumen t that the BIA ’s decision wa s not “final” 5 until this Cou rt had reviewe d it is unavai ling. Courts have 6 long recognize d that the fil ing of a motio n to reopen be fore 7 the BIA does n ot impact the finality of a removal order, see 8 Stone v. INS , 514 U.S. 386 , 405-06 (1995 ), and that 9 therefore the limitations pe riod for a pet ition for revi ew 10 of a “final or der of removal ” under 8 U.S. C. § 1252(b)(1 ) 11 begins to run immediately up on the order’s issuance by t he 12 BIA, see Kaur , 413 F.3d at 233 (citing Stone , 514 U.S. at 13 405-06). Like wise, we see n o reason why t he filing of a 14 petition for r eview should a ffect finality . Indeed, thi s 15 Court has juri sdiction to re view only peti tions for revi ew 16 of final orders of removal. See 8 U.S.C. § 12 52(d). If 17 Chen were corr ect that an or der of the BIA is not final 18 until this Cou rt has issued its decision, then we would have 19 no jurisdictio n over a petit ion for review until we had 20 already decide d it; this can not be the cas e. 21 Just as meritl ess is Chen’s argument that the 225

limitations pe riod for a mot ion to reopen should have be en 1 equitably toll ed until this Court had issu ed its decisio n on 2 his petition. The statutory scheme govern ing our review is 3 inconsistent w ith the notionthat a petiti on for review 4 tolls any limi tations period applicable tomotions befor e 5 the BIA. Thatis because “a ny review sought of a motionto 6 reopen or reco nsider [a remo val order] sha ll be consolidated 7 with the revie w of the order .” 8 U.S.C. §1252(b)(6). 8 Congress thus contemplated t hat a motion t o reopen or 9 reconsider might be filed co ncurrently wit h a petition f or 10 review. See Randhawa v. Go nzales , 474 F.3d 918 , 921 (6th 11 Cir. 2007). I f the filing o f a petition f or review obvi ated 12 any need to fi le a motion toreopen in a t imely fashion, we 13 would likely n ever invoke § 1252(b)(6) to simultaneously 14 review a remov al order and t he denial of amotion to reopen, 15 and all petiti oners whose fi rst petition f or review was 16 unsuccessful w ould invariabl y appear a sec ond time (whic h, 17 as a practicalmatter, mightbe years late r) with argume nts 18 similar or ide ntical to thos e advanced by the previous 19 petition for r eview. Such aresult, whichis inefficien t 20 and ripe for abuse, would beat odds with the spirit of § 21 1252(b)(6). See Randhawa , 474 F.3d at 922. Thus, “only [ a 226

no-tolling] ru le gives meani ng to [§ 1252( b)(6)].” Stone , 1 514 U.S. at 39 5. 2 In any event, Chen adduced n o evidence in the BIA that 3 he exercised due diligence during the rele vant period, see 4 Jin Bo Zhao v. INS , 452 F.3d 154 , 157 (2d Cir. 2006), and he 5 provided no explanation as t o why his pend ing petition f or 6 review impaire d his ability to file a moti on to reopen. And 7 any such expla nation would h ave been disin genuous since Chen 8 actually filed his motion toreopen before this Court is sued 9 any decision o n his petitionfor review. 10 As to Chen’s a rgument that t he BIA should have reopened 11 the case for humanitarian re asons notwiths tanding the 12 motion’s untimeliness, we la ck jurisdictio n to review th e 13 BIA’s refusal to exercise it s discretionar y power to reope n 14 sua sponteunder 8 C.F.R . § 1003.2(a) . Ali v. Gonzale s , 448 15 F.3d 515, 518 (2d Cir. 2006) . 16 For the reason s set forth ab ove, the petit ion is hereby 17 DENIED. Chen’ s motion for astay of remov al is DISMISSE D as 18 moot. 19