10-2799-ag

Wang v. Holder

BIA

A079 433 133

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

New York, on the 15th 4 day of August, two thousand eleven.

5

6 PRESENT:

7 REENA RAGGI,

8 RICHARD C. WESLEY,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _________________________________________

12

13 SIYUAN WANG,

14 Petitioner, 

15

16 v. 10-2799-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _________________________________________

22

23 FOR PETITIONER: Gary J. Yerman, New York, New York. 

24

25 FOR RESPONDENT: Varuni Nelson, Scott Dunn, Margaret

26 M. Kolbe, Assistant United States

27 Attorneys; Dione M. Enea, Special

28 Assistant United States Attorney, Of

29 Counsel; Loretta E. Lynch, United

30 States Attorney, Eastern District of

31 New York, Brooklyn, New York. 
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 DENIED.

5 Petitioner Siyuan Wang, a native and citizen of the

6 People’s Republic of China, seeks review of the BIA’s June

7 17, 2010, decision denying his motion to reopen. In re

8 Siyuan Wang, No. A079 433 133 (B.I.A. June 17, 2010). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history of the case.

11 The BIA’s denial of Wang’s motion to reopen as untimely

12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d

13 232, 233 (2d Cir. 2005). A motion to reopen generally must

14 be filed no later than 90 days after the date on which the

15 final administrative decision has been rendered in the

16 proceedings sought to be reopened. 8 U.S.C.

17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no

18 dispute that Wang’s 2010 motion was untimely, as the final

19 administrative decision was issued in 2004. See 8 U.S.C.

20 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Our review of

21 the record reveals no circumstances that would constitute an

22 exception to the deadline for filing a motion to reopen. 

23 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3);
3

1 Rabiu v. INS, 41 F.3d 879, 881-82 (2d Cir. 1994). 

2 Accordingly, we conclude that the BIA did not abuse its

3 discretion in denying Wang’s motion to reopen as untimely. 

4 In addition to the statutory requirement that a

5 petitioner must exhaust the categories of relief he seeks, 

6 8 U.S.C. § 1252(d)(1), a petitioner must also raise to the

7 BIA the specific issues he later raises in this Court.

8 “Since removal may be improper for any number of reasons,

9 the mere statement that one is not removable does not serve

10 to raise a specific issue to the IJ. To preserve a claim,

11 we require petitioner to raise issues to the BIA in order to

12 preserve them for judicial review.’” Foster v. INS, 376

13 F.3d 75, 78 (2d Cir. 2004) (internal quotation marks and

14 brackets omitted). While not jurisdictional, this

15 judicially imposed exhaustion requirement is mandatory. Lin

16 Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

17 Cir. 2007). Wang contends that he did not knowingly and

18 voluntarily waive his rights over eight years ago when he

19 entered the United States. Because Wang failed to raise the

20 issue before the agency, and because the government has

21 raised this failure to exhaust, we decline to consider the

22 issue. See id. at 124 (describing the issue exhaustion

23 requirement as an “affirmative defense subject to waiver.”).
4

1 For the foregoing reasons, the petition for review is

2 DENIED. As we have completed our review, any stay of

3 removal that the Court previously granted in this petition

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

5 this petition is DISMISSED as moot.

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8