16-1137 Dong v. Sessions BIA A077 993 626 

### 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 TO 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**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **28 th**  **day of July, two thousand seventeen.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES,** 7 **GERARD E. LYNCH,** 8 **DENNY CHIN,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **LI PING DONG, AKA SANDY MIKYUNG** 13 **CHO,** 14 15 Petitioner **,** 16 17 **v. 16-1137** 18 **NAC** 19 20 **JEFFERSON B. SESSIONS III, UNITED** 21 **STATES ATTORNEY GENERAL,** 22 23 Respondent **.** 24

**_____________________________________** 25 26 27 **FOR PETITIONER:** Meer M. M. Rahman, New York, NY. 28 292 **FOR RESPONDENT:** Chad A. Readler, Acting Assistant 1 Attorney General; Anthony P. 2 Nicastro, Assistant Director; D. 3 Nicholas Harling, Trial Attorney, 4 Office of Immigration Litigation, 5 United States Department of Justice, 6 Washington, DC. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review is 11

DISMISSED. 12 Petitioner Li Ping Dong, a native and citizen of the 13 People’s Republic of China, seeks review of a March 17, 2016, 14 decision of the BIA denying her motion to reopen. In re Li Ping 15 Dong , No. A077 993 626 (B.I.A. Mar. 17, 2016). We assume the 16 parties’ familiarity with the underlying facts and procedural 17 history in this case. 18 “We review the denial of motions to reopen immigration 19 proceedings for abuse of discretion.” Ali v. Gonzales , 448 20 F.3d 515, 517 (2d Cir. 2006). The BIA denied reopening on two 21 grounds. Dong does not dispute that her motion—her second 22 request to reopen filed twelve years after her removal order—was 23 untimely and number-barred. 8 U.S.C. § 1229a(c)(7)(A), 24 (C)(i); 8 C.F.R. § 1003.2(c)(2). Nor does she dispute that an 253 application for adjustment of status does not fall into any 1 exception to those limits. See Matter of Yauri , 25 I. & N. Dec. 2 103, 105 (B.I.A. 2009) (“[E]mphasiz[ing] that untimely motions 3 to reopen to pursue an application for adjustment of 4 status . . . do not fall within any of the statutory or 5 regulatory exceptions to the time limits for motions to reopen 6 before the Board.”). 7 Thus, Dong’s request necessarily invoked the BIA’s 8 authority to reopen her proceedings sua sponte. See Mahmood 9 v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s 10 untimely motion to reopen was not excused by any regulatory 11 exception, his motion to reopen could only be considered upon 12 exercise of the Agency’s sua sponte authority.”); see also 8 13 C.F.R. § 1003.2(a). The BIA’s determination as to whether it 14 will exercise its sua sponte authority “is entirely 15 discretionary” and thus beyond the scope of our jurisdiction. 16 See Ali , 448 F.3d at 518. Although we may remand if the BIA 17 declines to reopen sua sponte “because it misperceived the legal 18 background and thought, incorrectly, that a reopening would 19 necessarily fail,” Mahmood, 570 F.3d at 469, the BIA’s decision 20 does not reflect any such misperception. 214 Petitioner’s reliance on Sheng Gao Ni v. Board of 1 Immigration Appeals , 520 F.3d 125 (2d Cir. 2008), is misplaced. 2

In Sheng Gao Ni , we remanded because the BIA incorrectly assumed 3 that the petitioners sought to have the BIA adjudicate their 4 adjustment of status applications, rather than continue 5 proceedings. 520 F.3d at 130. Dong’s adjustment application 6 has already been denied, and thus there was no basis for a 7 continuance. Moreover, here, the BIA did not conclude that it 8 lacked jurisdiction; it simply found that Dong did not establish 9 exceptional circumstances that would warrant reopening. Dong 10 does not identify any basis to challenge this dispositive 11 determination. 12 For the foregoing reasons, the petition for review is 13

DISMISSED. 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16