10-1163-ag Chai v. Holder BIA A076 506 690 

### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 10 th** **day of August, two thousand eleven.** 4 5 **PRESENT:** 6 **ROSEMARY S. POOLER,** 7 **DEBRA ANN LIVINGSTON,** 8 **DENNY CHIN,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **TIAN MING CHAI,** 13 Petitioner**,** 14 15 **v. 10-1163-ag** 16 **NAC** 17 18 **UNITED STATES DEPARTMENT OF JUSTICE,** 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent**s.** 22

**_______________________________________** 23 24 **FOR PETITIONER: Yee Ling Poon, Deborah Niedermeyer,** 25 **New York, New York.** 26 27 **FOR RESPONDENTS: Tony West, Assistant Attorney** 28 **General; James A. Hunolt, Senior** 29 **Litigation Counsel; Christopher P.** 30 **McGreal, Trial Attorney, Office of** 31**Immigration Litigation, Civil** 1 **Division, United States Department** 2 **of Justice, Washington, D.C.** 3 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is DISMISSED in part and DENIED in part. 4 Tian Ming Chai, a native and citizen of the People’s 5 Republic of China, seeks review of a March 4, 2010, order of 6 the BIA denying his motion to reopen his removal 7 proceedings. In re Tian Ming Chai , No. A076 506 690 (B.I.A. 8 Mar. 4, 2010). We assume the parties’ familiarity with the 9 underlying facts and procedural history of the case. 10 We review the BIA’s denial of a motion to reopen for 11 abuse of discretion. See Ali v. Gonzales , 448 F.3d 515, 517 12 (2d Cir. 2006). Because Chai’s motion was untimely, as it 13 was filed approximately five years after the final 14 administrative decision, 8 C.F.R. § 1003.2(c)(2), reopening 15 could be granted only upon a showing of changed country 16 conditions or through the BIA’s exercise of its authority to 17

reopen sua sponte , 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. 18 § 1003.2(a). Because Chai does not challenge the BIA’s 19 finding that he failed to demonstrate a change in country 20

2conditions, the only issue before us is whether the BIA 1 erred in declining to reopen his case sua sponte **.** 2 We lack jurisdiction to review the BIA’s decision not 3 to reopen Chai’s case sua sponteunder 8 C.F.R. § 1003.2(a), 4 because that decision was “entirely discretionary.” Ali , 5 448 F.3d at 518. Whereas in Mahmood v. Holder, 570 F.3d 6 466, 471 (2d Cir. 2009), we vacated and remanded the 7 agency’s decision because it was based on an erroneous legal 8 assumption, here, the BIA declined to exercise its 9 discretion to reopen Chai’s case because he failed to 10 demonstrate exceptional circumstances. See Guyadin v. 11 Gonzales , 449 F.3d 465, 468-69 (2d Cir. 2006) (emphasizing 12 that it is not possible to create jurisdiction over a 13 discretionary determination by simply framing a challenge to 14 such a determination as a legal question). Because the 15 BIA’s conclusion that there were no exceptional 16 circumstances was based on its factual findings regarding 17 the country conditions, there is no basis for this Court to 18 exercise jurisdiction. Cf. Mahmood , 570 F.3d at 471. 19 To the extent Chai challenges the BIA’sreview of the 20 record, we have jurisdiction to consider that argument 21 because it is a question of law. See Luna v. Holder, 637 22

3F.3d 85, 92 (2d Cir. 2011). Given the BIA’s explicit 1 references to the documentation submitted with the motion to 2 reopen, there is no basis to find that it ignored any 3 evidence. See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d 4 Cir. 2006) (holding that the BIA is not required to 5 “expressly parse or refute on the record each individual 6 argument or piece of evidence offered by the petitioner” as 7 long as it “has given reasoned consideration to the 8 petition, and made adequate findings”); Xiao Ji Chen v. U.S. 9 Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d Cir. 2006) 10 (presuming that the agency “has taken into account all of 11 the evidence before [it], unless the record compellingly 12 suggests otherwise”). 13 For the foregoing reasons, the petition for review is 14 DISMISSED in part and DENIED in part. 15
FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18 19 20

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