10-2799-ag Wang v. Holder BIA A079 433 133 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SU MMARY ORDER DO NOT**  **HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 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 15 th** **day of August, two thousand eleven.** 4 5 **PRESENT:** 6 **REENA RAGGI,** 7 **RICHARD C. WESLEY,** 8 **GERARD E. LYNCH,** 9 Circuit Judges. 10

**_________________________________________** 11 12 **SIYUAN WANG,** 13 Petitioner**,** 14 15 **v. 10-2799-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_________________________________________** 21 22 **FOR PETITIONER: Gary J. Yerman, New York, New York.** 23 24 **FOR RESPONDENT: Varuni Nelson, Scott Dunn, Margaret** 25 **M. Kolbe, Assistant United States** 26 **Attorneys; Dione M. Enea, Special** 27 **Assistant United States Attorney, Of** 28 **Counsel; Loretta E. Lynch, United** 29 **States Attorney, Eastern District of** 30 **New York, Brooklyn, New York.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Siyuan Wang, a native and citizen of the 5 People’s Republic of China, seeks review of the BIA’s June 6 17, 2010, decision denying his motion to reopen. In re 7 Siyuan Wang, No. A079 433 133 (B.I.A. June 17, 2010). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history of the case. 10 The BIA’s denial of Wang’s motion to reopen as untimely 11 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d 12 232, 233 (2d Cir. 2005). A motion to reopen generally must 13 be filed no later than 90 days after the date on which the 14 final administrative decision has been rendered in the 15 proceedings sought to be reopened. 8 U.S.C. 16 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no 17 dispute that Wang’s 2010 motion was untimely, as the final 18 administrative decision was issued in 2004. See 8 U.S.C. 19 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Our review of 20 the record reveals no circumstances that would constitute an 21 exception to the deadline for filing a motion to reopen. 22
See8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3) ; 233 Rabiu v. INS , 41 F.3d 879, 881-82 (2d Cir. 1994). 1 Accordingly, we conclude that the BIA did not abuse its 2 discretion in denying Wang’s motion to reopen as untimely. 3 In addition to the statutory requirement that a 4 petitioner must exhaust the categories of relief he seeks, 5 8 U.S.C. § 1252(d)(1), a petitioner must also raise to the 6 BIA the specific issues he later raises in this Court. 7 “Since removal may be improper for any number of reasons, 8 the mere statement that one is not removable does not serve 9 to raise a specific issue to the IJ. To preserve a claim, 10 we require petitioner to raise issues to the BIA in order to 11 preserve them for judicial review.’” Foster v. INS , 376 12 F.3d 75, 78 (2d Cir. 2004) (internal quotation marks and 13 brackets omitted). While not jurisdictional, this 14 judicially imposed exhaustion requirement is mandatory. Lin 15 Zhong v. U.S. Dep’t of Justice , 480 F.3d 104, 119-20 (2d 16 Cir. 2007). Wang contends that he did not knowingly and 17 voluntarily waive his rights over eight years ago when he 18 entered the United States. Because Wang failed to raise the 19 issue before the agency, and because the government has 20 raised this failure to exhaust, we decline to consider the 21 issue. See id . at 124 (describing the issue exhaustion 22 requirement as an “affirmative defense subject to waiver.”). 234 For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of 2 removal that the Court previously granted in this petition 3 is VACATED, and any pending motion for a stay of removal in 4 this petition is DISMISSED as moot. 5

FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8