* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60206

Summary Calendar

SHENGPING GAO,

Petitioner,

v.

MICHAEL B. MUKASEY, U S ATTORNEY GENERAL,

Respondent.

Petitions for Review of an Order of the

Board of Immigration Appeals

BIA No. A95 880 764

Before DAVIS, GARZA, and PRADO, Circuit Judges. 

PER CURIAM:*

Shengping Gao, a native and citizen of China, entered the United States

on May 23, 2002, using a fraudulent passport. Gao has petitioned for review of

the denial of her application for adjustment of her status based on her marriage

to a United States citizen and the dismissal of her motion to reopen her removal

proceedings. 

Gao contends thatthe BIA erred in determining that she was ineligible for

adjustment of status. “The status of an alien who was inspected and admitted

United States Court of Appeals

Fifth Circuit

F I L E D

September 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-60206

2

or paroled into the United States . . . may be adjusted by the Attorney General,

in his discretion and under such regulations as he may prescribe, to that of an

alien lawfully admitted for permanent residence.” 8 U.S.C. § 1255(a) (emphasis

supplied). “The terms ‘admission’ and ‘admitted’ mean, with respect to an alien,

the lawful entry of the alien into the United States after inspection and

authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). The BIA

determined that Gao was not eligible for adjustment of status because she had

not been “admitted” under the statutory definition of that term. The BIA

determined, “Because the respondent used a false passport to gain admission

into the United States, her entry was not lawful and thus she was not ‘admitted’

for purposes of [§ 1255(a)].” Gao has not shown that the BIA has construed

§§ 1255(a) and 1101(a)(13)(A) impermissibly. See White v. INS, 75 F.3d 213, 215

(5th Cir. 1996). 

Gao contends that her attorneys rendered ineffective assistance in failing

to assert an asylum claim on her behalf and that her right to due process was

violated because she was not provided with a Chinese language interpreter.

These issues were first asserted in Gao’s motion to reopen. The BIA denied the

motion to reopen as untimely filed. 

We review the BIA’s denial of a motion to reopen “under a highly

deferential abuse of discretion standard.” Manzano-Garcia v. Gonzales, 413F.3d

462, 469 (5th Cir. 2005). A motion to reopen “must be filed no later than 90 days

after the date on which the final administrative decision was rendered in the

proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(1)&(2). There are a few

exceptions to the time limitations on motions to reopen, none of which apply in

this case. See § 1003.2(c)(3)(i)-(iv). In addition, the BIA has authority to sua

sponte reopen a case in which it has rendered a decision. See § 1003.2(a). “A

denial of an untimely motion to reopen has the same legal effect as a failure to

exercise sua sponte authority to reopen a case.” Enriquez-Alvarado v. Ashcroft,

371 F.3d 246, 249 n.3 (5th Cir. 2004) (emphasis omitted). 
No. 07-60206

3

The Supreme Court has stated that an appellate court may not review an

agency’s discretionary determination where there is “no meaningful standard

against which to judge the agency’s exercise of discretion.” Heckler v. Chaney,

470 U.S. 821, 830 (1985). “The Code of Federal Regulations suggests that no

meaningful standard exists against which to judge [the BIA’s] decision to

exercise sua sponte authority to reopen deportation proceedings.” EnriquezAlvarado, 371 F.3d at 249 (interpreting similar provision applicable to the

authority of immigration judges to reopen proceeding, 8 C.F.R. § 1003.23(b)); see

also Ohiri v. Gonzales, 233 F. App’x 354, 356 (5th Cir. 2007) (following EnriquezAlvardo in § 1003.2(a) case)). For that reason, we lack jurisdiction to review the

denial of Gao’s motion to reopen. See Enriquez-Alvarado, 371 F.3d at 249.

Because Gao has not briefed the question whether the BIA abused its

discretion in denying the motion to reopen as untimely, we have not considered

whether the BIA abused its discretion in determining, in the alternative, that

the period for filing a timely motion to reopen should not be equitably tolled and

that Gao’s ineffective assistance claim was without merit. See Rodriguez v. INS,

9 F.3d 408, 414 n.15 (5th Cir. 1993). 

The petition for review of the application for adjustment of status is

DENIED. The petition for review of the motion to reopen the deportation

proceedings is DISMISSED.