14-2435 

Zheng v. Lynch

BIA 

A098 288 963 

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 

the Second Circuit, held at the Thurgood Marshall United States 

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

21st day of July, two thousand fifteen. 

PRESENT: 

RALPH K. WINTER,

GUIDO CALABRESI, 

PETER W. HALL,

Circuit Judges. 

_____________________________________ 

FENG ZHENG, 

 Petitioner, 

v. 14-2435 

 NAC 

LORETTA E. LYNCH, UNITED STATES 

ATTORNEY GENERAL,* 

 Respondent.

_____________________________________ 

FOR PETITIONER: Jay Ho Lee, New York, New York. 

 

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney 

General Loretta E. Lynch is automatically substituted for former Attorney 

General Eric H. Holder, Jr., as the Respondent in this case. 
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FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant 

Attorney General; Christopher C. 

Fuler, Deputy Chief, Alison Marie 

Igoe, Senior Counsel for National 

Security, National Security Unit, 

Office of Immigration Litigation, 

United States Department of Justice, 

Washington, D.C. 

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 

DISMISSED. 

 Petitioner Feng Zheng, a native and citizen of the People’s 

Republic of China, seeks review of a June 12, 2014, decision 

of the BIA denying her motion to reconsider. In re Feng Zheng, 

No. A098 288 963 (B.I.A. June 12, 2014). We assume the parties’ 

familiarity with the underlying facts and procedural history 

in this case. 

A motion to reconsider must be filed within 30 days of the 

challenged decision and must specify an error of law or fact 

in that decision. 8 C.F.R. § 1003.2(b)(2). Because Zheng’s 

2014 motion to reconsider was filed more than seven years after 

the 2006 decision she asked the BIA to reconsider, the BIA did 

not abuse its discretion in denying the motion as untimely. 
3

Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007) 

(per curiam). However, Zheng does not challenge the BIA’s 

denial of her motion to reconsider as untimely; instead, she 

argues that the BIA abused its discretion in declining to 

exercise its sua sponte authority to reconsider. 

 We lack jurisdiction to review the BIA’s determination that 

a case does not warrant the exercise of its sua sponte authority. 

See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). 

Nonetheless, where the BIA may have declined to exercise its 

sua sponte authority “because it misperceived the legal 

background,” we retain jurisdiction and remand may be 

appropriate for consideration of the correct law. Mahmood v. 

Holder, 570 F.3d 466, 469 (2d Cir. 2009). 

 Contrary to Zheng’s contention, the BIA did not misperceive 

the legal background when it declined to reconsider its prior 

decision based on Zheng’s argument that Negusie v. Holder, 555 

U.S. 511 (2009), affected the analysis of whether she was 

subject to the persecutor bar to asylum. Negusie was issued 

in 2009, three years after the BIA’s decision and five years 

before Zheng moved to reconsider. Furthermore, the Supreme 

Court remanded Negusie to the BIA for a determination in the 
4

first instance of whether there was a duress exception to the 

persecutor bar. Negusie, 555 U.S. at 523-24. Zheng does not 

argue that she was under duress when, as a nurse in China, she 

assisted in forced sterilizations and abortions. Indeed, the 

record shows that Zheng’s actions were voluntary: she testified 

that she assisted in sterilizations and abortions because it 

was her job to do so, and an immigration judge concluded that 

Zheng did not qualify for asylum “because she voluntarily 

participated in the persecution of others.” Accordingly, we 

lack jurisdiction to review Zheng’s petition. See Ali, 448 

F.3d at 518; cf. Mahmood, 570 F.3d at 469-71. 

 For the foregoing reasons, the petition for review is 

DISMISSED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk