09-4526-ag

Chen v. Holder

BIA

A070 505 347

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 17th day of February, two thousand eleven.

PRESENT:

JOSEPH M. McLAUGHLIN,

ROBERT A. KATZMANN,

PETER W. HALL,

Circuit Judges.

_______________________________________

BAO LING CHEN,

Petitioner, 

 v. 09-4526-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES, 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Nathan Weill, New York, N.Y.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Leslie McKay, Assistant

Director; Kelly J. Walls, Trial

Attorney, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, DC
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UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED in part and DISMISSED in part.

Petitioner Bao Ling Chen, a native and citizen of

China, seeks review of an October 5, 2009 order of the BIA

denying his motion to reopen. In re Bao Ling Chen, No. A070

505 347 (B.I.A. Oct. 5, 2009). We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

We review the BIA’s denial of a motion to reopen for

abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006). The BIA entered the final administrative

order on April 26, 1999, and Chen did not file his motion to

reopen until August 6, 2009. Chen argues that the BIA

abused its discretion in declining to excuse the 90-day

filing deadline applicable to his motion to reopen. 

However, Chen failed to address the issue of the timeliness

of his motion, and his eligibility for an adjustment of

status does not constitute an exception to the applicable

time limitation on motions to reopen. See 8 U.S.C.

§ 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3); see also Matter

of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009) (emphasizing
3

“that untimely motions to reopen to pursue an application

for adjustment of status . . . do not fall within any of the

statutory or regulatory exceptions to the time limits for

motions to reopen before the Board”). Accordingly, we find

no abuse of discretion in the BIA’s denial of Chen’s motion

to reopen.

Moreover, we lack jurisdiction to consider Chen’s

argument that the BIA should have exercised its authority to

reopen sua sponte his exclusion proceedings based on the

regulations that now permit Chen to pursue statutorily an

adjustment of status. The BIA’s determination as to whether

it will exercise its authority to reopen proceedings sua

sponte is entirely discretionary and thus beyond the scope

of our jurisdiction. See Ali, 448 F.3d at 518. Although

remand may be appropriate “where the Agency may have

declined to exercise its sua sponte authority because it

misperceived the legal background and thought, incorrectly,

that a reopening would necessarily fail,” Mahmood v. Holder,

570 F.3d 466, 469 (2d Cir. 2009), there is no indication

here that the BIA misperceived the law in declining to

reopen proceedings sua sponte, see Matter of Yauri, 25 I. &

N. Dec. at 110-12 (holding that Agency ordinarily lacks

discretion to reopen untimely motions pending adjudication
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of applications for adjustment of status and thus concluding

that an arriving alien’s eligibility for adjustment of

status did not present exceptional circumstances warranting

sua sponte reopening). 

For the foregoing reasons, the portion of the petition

for review of the BIA’s denial of Chen’s motion to reopen is

DENIED and the portion of the petition for review of the

BIA’s decision not to exercise its sua sponte authority to

reopen Chen’s exclusion proceedings is DISMISSED. As we

have completed our review, the pending motion for a stay of

removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk