09 -3 47 6- ag

Ren v.Holder BIA A070 891 599 

### UNITE D STATES COURT OFAPPEALS FOR T HE SE COND CIRCU IT 

# SUM MARY ORDE R

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 C IT IN G 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 Patric k 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 Lit igation, Civil Division, United States Department of Justice, Washington, D.C.-2-

UPON DUE CONSIDERATION of this petition for re view of a Board of Immigration Appeal s (“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 reo pen. In re Mei Dian Ren , No. A070 891 599 (B.I.A. July 22, 2009). We as su me 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 a pp lies. 8 C.F.R. § 1003.2(c). The BIA may reopen proceedings sua sponte if no

exce pt ion applies, but we lack jurisdiction to review such discret io nary 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 revi ew the BIA’s discretionary denial of Ren’s motion to reop en . R en sought to reopen the BIA’s 2002 decision “in the interests of justice” so that he-3-

could file a brief in su pp ort 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. § 10 03 .2(a); Mahmood , 570 F.3d at 469 (where an “untimely motion to reopen was not excused by any regulator y exception, [the] motion to reopen could only be co ns id ered upon exercise of the Agency’s sua sponte authority”). The BIA’s determination as to whether it wi ll exercise its sua sponte authority is entirely discretionary and thus bey ond the scope of this Court’s jurisdiction. See Ali , 448 F.3d at 517. Th er e is no indication in the r ecord that the BIA misunderstood its

au thority 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 motio n to reopen. See id. For th e fo regoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of-4-

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