09-3100-ag

You v. Holder

BIA

A073 050 842

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

4 New York, on the 30 day of September, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 JON O. NEWMAN,

10 RICHARD C. WESLEY,

11 Circuit Judges. 

12 ______________________________________

13

14 BI JIAN YOU,

15 Petitioner, 

16 09-3100-ag

17 v. NAC

18

19 ERIC H. HOLDER, JR.,

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Tina Y. Howe, New York, New York

24

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, Civil Division; Michelle

28 Gordon Latour, Assistant Director;

29 Cindy S. Ferrier, Senior Litigation

30 Counsel, Office of Immigration

31 Litigation, Civil Division, United

32 States Department of Justice,

33 Washington, D.C.

34
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DISMISSED in part and DENIED in part.

5 Bi Jian You, a native and citizen of the People’s

6 Republic of China, seeks review of a June 26, 2009, order of

7 the BIA denying his motion to reopen. In re Bi Jian You,

8 No. A073 050 842 (B.I.A. June 26, 2009). We assume the

9 parties’ familiarity with the underlying facts and

10 procedural history of the case.

11 We review the BIA’s denial of You’s motion to reopen

12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). An alien is limited to a single motion to

14 reopen that is filed within 90 days of the final

15 administrative decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R.

16 § 1003.2(c)(2). This is You’s third motion to reopen, filed

17 more than eight years after the BIA’s removal order. We

18 find no abuse of discretion.

19 You’s third motion sought reopening to apply for

20 adjustment of status; however, eligibility for adjustment of

21 status is not an exception to the applicable time limitation

22 on motions to reopen. See 8 U.S.C. § 1229a(c)(7)(C); 

23 8 C.F.R. § 1003.2(c)(3)(ii); see also Matter of Yauri, 25 I.
3

1 & N. Dec. 103, 105 (BIA 2009) (emphasizing “that untimely

2 motions to reopen to pursue an application for adjustment of

3 status . . . do not fall within any of the statutory or

4 regulatory exceptions to the time limits for motions to

5 reopen before the Board”). Accordingly, You was implicitly

6 invoking the BIA’s authority to reopen his proceedings sua

7 sponte. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir.

8 2009). The BIA’s determination as to whether it will

9 exercise its sua sponte authority is entirely discretionary

10 and thus beyond the scope of our jurisdiction. See Ali, 448

11 F.3d at 518. Although we retain jurisdiction to review the

12 BIA’s finding that an alien is ineligible for adjustment of

13 status, see Mahmood, 570 F.3d at 469; Aslam v. Mukasey, 537

14 F.3d 110, 115 (2d Cir. 2008), there is no indication that

15 the BIA misperceived the law in declining to reopen You’s

16 proceedings. To the contrary, the BIA denied You’s time17 and-number-barred motion because it found that a favorable

18 exercise of its discretion was not warranted, rather than

19 because it found You ineligible to adjust status. See Ali,

20 448 F.3d at 517. 

21 Finally, we lack jurisdiction to consider You’s due

22 process challenge to the BIA’s 2003 order, because he failed

23 to file a petition for review of that order with this Court. 
4

1 See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed

2 with an appropriate court of appeals . . . shall be the sole

3 and exclusive means for judicial review of an order of

4 removal . . . .”); see also Stone v. INS, 514 U.S. 386, 405-

5 06 (1995) (providing that a petition for review challenges

6 only the order(s) from which it was timely filed).

7 For the foregoing reasons, the petition for review is

8 DISMISSED in part and DENIED in part. As we have completed

9 our review, any pending motion for a stay of removal in this

10 petition is DISMISSED as moot. Any pending request for oral

11 argument in this petition is DENIED in accordance with

12 Federal Rule of Appellate Procedure 34(a)(2), and Second

13 Circuit Local Rule 34.1(b).

14 FOR THE COURT: 

15 Catherine O’Hagan Wolfe, Clerk

16

17