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.

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

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

28th 4 day of July, two thousand seventeen. 

5 

6 PRESENT: 

7 JOSÉ A. CABRANES,

8 GERARD E. LYNCH, 

9 DENNY CHIN,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 LI PING DONG, AKA SANDY MIKYUNG 

14 CHO, 

15 

16 Petitioner, 

17 

18 v. 16-1137 

19 NAC 

20 

21 JEFFERSON B. SESSIONS III, UNITED 

22 STATES ATTORNEY GENERAL, 

23 

24 Respondent. 

25 _____________________________________ 

26 

27 

28 FOR PETITIONER: Meer M. M. Rahman, New York, NY. 

29 
2 

1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 

2 Attorney General; Anthony P. 

3 Nicastro, Assistant Director; D. 

4 Nicholas Harling, Trial Attorney, 

5 Office of Immigration Litigation, 

6 United States Department of Justice, 

7 Washington, DC. 

8 

9 UPON DUE CONSIDERATION of this petition for review of a 

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

11 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

12 DISMISSED. 

13 Petitioner Li Ping Dong, a native and citizen of the 

14 People’s Republic of China, seeks review of a March 17, 2016, 

15 decision of the BIA denying her motion to reopen. In re Li Ping 

16 Dong, No. A077 993 626 (B.I.A. Mar. 17, 2016). We assume the 

17 parties’ familiarity with the underlying facts and procedural 

18 history in this case. 

19 “We review the denial of motions to reopen immigration 

20 proceedings for abuse of discretion.” Ali v. Gonzales, 448 

21 F.3d 515, 517 (2d Cir. 2006). The BIA denied reopening on two 

22 grounds. Dong does not dispute that her motion—her second 

23 request to reopen filed twelve years after her removal order—was 

24 untimely and number-barred. 8 U.S.C. § 1229a(c)(7)(A), 

25 (C)(i); 8 C.F.R. § 1003.2(c)(2). Nor does she dispute that an 
3 

1 application for adjustment of status does not fall into any 

2 exception to those limits. See Matter of Yauri, 25 I. & N. Dec. 

3 103, 105 (B.I.A. 2009) (“[E]mphasiz[ing] that untimely motions 

4 to reopen to pursue an application for adjustment of 

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

6 regulatory exceptions to the time limits for motions to reopen 

7 before the Board.”). 

8 Thus, Dong’s request necessarily invoked the BIA’s 

9 authority to reopen her proceedings sua sponte. See Mahmood 

10 v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s 

11 untimely motion to reopen was not excused by any regulatory 

12 exception, his motion to reopen could only be considered upon 

13 exercise of the Agency’s sua sponte authority.”); see also 8 

14 C.F.R. § 1003.2(a). The BIA’s determination as to whether it 

15 will exercise its sua sponte authority “is entirely 

16 discretionary” and thus beyond the scope of our jurisdiction. 

17 See Ali, 448 F.3d at 518. Although we may remand if the BIA 

18 declines to reopen sua sponte “because it misperceived the legal 

19 background and thought, incorrectly, that a reopening would 

20 necessarily fail,” Mahmood, 570 F.3d at 469, the BIA’s decision 

21 does not reflect any such misperception. 
4 

1 Petitioner’s reliance on Sheng Gao Ni v. Board of 

2 Immigration Appeals, 520 F.3d 125 (2d Cir. 2008), is misplaced. 

3 In Sheng Gao Ni, we remanded because the BIA incorrectly assumed 

4 that the petitioners sought to have the BIA adjudicate their 

5 adjustment of status applications, rather than continue 

6 proceedings. 520 F.3d at 130. Dong’s adjustment application 

7 has already been denied, and thus there was no basis for a 

8 continuance. Moreover, here, the BIA did not conclude that it 

9 lacked jurisdiction; it simply found that Dong did not establish 

10 exceptional circumstances that would warrant reopening. Dong 

11 does not identify any basis to challenge this dispositive 

12 determination. 

13 For the foregoing reasons, the petition for review is 

14 DISMISSED. 

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk