09-3476-ag

Ren v. Holder

BIA

A070 891 599

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of New

York, on the 17 day of August, two thousand ten. th

PRESENT:

DENNIS JACOBS,

 Chief Judge.

JON O. NEWMAN,

JOSÉ A. CABRANES,

 Circuit Judges. 

______________________________________

MEI DIAN REN,

Petitioner, 

09-3476-ag

 v. NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Thomas V. Massucci, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney General,

Civil Division; Anh-Thu P. Mai-Windle,

Thomas B. Fatouros, Senior Litigation

Counsel, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, D.C.
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UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DISMISSED.

Petitioner, Mei Dian Ren, a native and citizen of China,

seeks review of a July 22, 2009, order of the BIA denying his

motion to reopen. In re Mei Dian Ren, No. A070 891 599

(B.I.A. July 22, 2009). We assume the parties’ familiarity

with the underlying facts and procedural history of the case.

We review the BIA’s denial of a motion to reopen for

abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006). An alien may only file one motion to reopen and

must do so within 90 days of the agency’s final administrative

decision unless a regulatory exception applies. 8 C.F.R.

§ 1003.2(c). The BIA may reopen proceedings sua sponte if no

exception applies, but we lack jurisdiction to review such

discretionary determinations if the BIA applied the correct

legal framework. See Mahmood v. Holder, 570 F.3d 466, 469 (2d

Cir. 2009).

We lack jurisdiction to review the BIA’s discretionary

denial of Ren’s motion to reopen. Ren sought to reopen the

BIA’s 2002 decision “in the interests of justice” so that he
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could file a brief in support of his appeal. However, the

BIA’s clerical error, which resulted in ineffective service of

the transcript, briefing schedule, and BIA decision, does not

constitute an exception to the statutory time limitation for

motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii). Thus,

Ren was necessarily invoking the BIA’s authority to reopen his

proceedings sua sponte. See 8 C.F.R. § 1003.2(a); Mahmood,

570 F.3d at 469 (where an “untimely motion to reopen was not

excused by any regulatory exception, [the] motion to reopen

could only be considered upon exercise of the Agency’s sua

sponte authority”). The BIA’s determination as to whether it

will exercise its sua sponte authority is entirely

discretionary and thus beyond the scope of this Court’s

jurisdiction. See Ali, 448 F.3d at 517. There is no

indication in the record that the BIA misunderstood its

authority or “misperceived the legal background.” See

Mahmood, 570 F.3d at 469. Therefore, because the BIA applied

the correct legal framework, this Court lacks jurisdiction to

review its discretionary denial of Ren’s motion to reopen.

See id.

For the foregoing reasons, the petition for review is

DISMISSED. As we have completed our review, any stay of
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removal that the Court previously granted in this petition is

VACATED, and any pending motion for a stay of removal in this

petition is DISMISSED as moot. Any pending request for oral

argument in this petition is DENIED in accordance with Federal

Rule of Appellate Procedure 34(a)(2), and Second Circuit Local

Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk