10-655-ag

Li v. Holder

BIA

A073 169 701

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 23rd day of August, two thousand eleven.

PRESENT:

GUIDO CALABRESI,

REENA RAGGI,

PETER W. HALL,

 Circuit Judges.

_________________________________________

YUE PING LI,

Petitioner, 

 v. 10-655-ag

 NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_________________________________________

 

FOR PETITIONER: Zhijun Liu, Flushing, New York.

FOR RESPONDENT: Tony West, Assistant Attorney General;

John S. Hogan, Senior Litigation

Counsel; David H. Wetmore, Trial

Attorney, Office of Immigration

Litigation, United States Department of

Justice, Washington, D.C.
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 DENIED IN PART and DISMISSED IN PART.

Petitioner Yue Ping Li, a native and citizen of China,

seeks review of a December 31, 2009 decision of the BIA

denying her motion to reopen. In re Yue Ping Li, No. A073 169

701 (B.I.A. Dec. 31, 2009). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

As an initial matter, we lack jurisdiction to consider

Li’s challenges to the IJ’s denial of asylum and withholding

of deportation because she has not timely petitioned for

review of that decision. See Luna v. Holder, 637 F.3d 85, 92

(2d Cir. 2011); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265

F.3d 83, 89-90 (2d Cir. 2001). Accordingly, only the BIA’s

denial of reopening, which is subject to a deferential abuse

of discretion review, is properly before us. See Jian Hui

Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 

It is undisputed that Li’s 2009 motion to reopen was

untimely because the BIA’s order of deportation became final

in 2002. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also 8 C.F.R.

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§ 1003.2(c)(2). Although Li argues that the BIA should have

equitably tolled the time for filing her motion to reopen

because of ineffective assistance of her former counsel, she

does not dispute the BIA’s determination that she failed to

exercise due diligence in pursuing her ineffective assistance

of counsel claim. See Cekic v. INS, 435 F.3d 167, 170-71 (2d

Cir. 2006) (requiring alien to demonstrate due diligence

independent from requirement of establishing ineffective

assistance of counsel). Indeed, Li provides no explanation

for having waited two years to file her motion to reopen after

purportedly first learning of the BIA’s order of removal in

2007. See Rashid v. Mukasey, 533 F.3d 127, 131 (2d Cir. 2008)

(stating that alien must demonstrate due diligence during

“period of discovering counsel’s ineffectiveness” and “period

between such discovery and filing” of motion to reopen). 

Accordingly, the BIA did not abuse its discretion in denying

Li’s motion as untimely, and this portion of the petition for

review is therefore denied. 

To the extent Li urges that the BIA erred in declining

sua sponte to reopen her removal proceedings, we lack

jurisdiction to consider this “entirely discretionary”

decision. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.

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2006). Nevertheless, “where the Agency may have declined to

exercise its sua sponte authority because it misperceived the

legal background and thought, incorrectly, that a reopening

would necessarily fail,” remand for “reconsideration in view

of the correct law is appropriate.” Mahmood v. Holder, 570

F.3d 466, 469 (2d Cir. 2009). Li here urges that the BIA

declined sua sponte to reopen her removal proceedings because

it erroneously determined that she was statutorily barred from

adjusting status for failure to comply with the agency’s

voluntary departure order. Li’s argument is without merit. 

An alien who fails to depart within a specified voluntary

departure period “shall be ineligible, for a period of 10

years,” for adjustment of status. 8 U.S.C. § 1229c(d); see

Harjinder Singh v. Gonzales, 468 F.3d 135, 139 (2d Cir. 2006). 

Because Li did not voluntarily depart within the specified

period, the BIA did not err in concluding that she is

statutorily ineligible for adjustment of status. 

Dada v. Mukasey, 554 U.S. 1 (2008), relied upon by Li,

does not mandate a different result. In that case, the

Supreme Court held that “to safeguard the right to pursue a

motion to reopen . . . [an] alien must be permitted to

withdraw, unilaterally, a voluntary departure request before

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expiration of the departure period.” Id. at 21. This holding

is of no help to Li, who never sought to withdraw her

voluntary departure request. Contrary to Li’s contention,

nothing in Dada suggests that her appeal to the BIA

automatically effectuated such a withdrawal. 

Moreover, the agency’s new voluntary departure

regulations, which automatically terminate a grant of

voluntary departure when an alien files a motion to reopen or

reconsider prior to the expiration of the voluntary departure

period, see 8 C.F.R. § 1240.26(e)(1), are irrelevant here

because they apply only to cases in which voluntary departure

was granted or reinstated on or after January 20, 2009, see

Voluntary Departure: Effect of a Motion to Reopen or

Reconsider or a Petition for Review, 73 Fed. Reg. 76,927,

76,936 (Dec. 18, 2008). In any event, these regulations do

not apply to Li because she filed her motion to reopen after

the expiration of her voluntary departure period. See 8

C.F.R. § 1240.26(e)(2). Accordingly, Li has not demonstrated

that the BIA’s decision declining to sua sponte reopen her

proceedings was based on a misperception of the law requiring

remand, and the petition for review is dismissed for lack of

jurisdiction to the extent it challenges that decision. See

Mahmood, 570 F.3d at 469. 

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For the foregoing reasons, the petition for review is

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

our review, any stay of 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(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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