Xue You Chen v. U.S. Attorney General , 291 F. App'x 935 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 28, 2008
No. 08-11145 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A73-557-884
XUE YOU CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 28, 2008)
Before BARKETT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Xue You Chen, proceeding pro se, seeks review of the Board of Immigration
Appeal’s (“BIA”) denial of his motion to reopen his proceedings so that he may
seek adjustment of status, pursuant to 8 C.F.R. § 1003.2(c), as well as various
underlying orders. For the reasons set forth below, we deny the petition in part and
dismiss the petition in part.
I. Facts
Chen filed an application for asylum and withholding of removal, pursuant
to INA §§ 208 and 241 and 8 U.S.C. §§ 1158 and 1231. On July 11, 1997, after an
asylum hearing, an Immigration Judge (“IJ”) denied Chen’s application for asylum
and withholding of removal and granted voluntary departure. Chen did not appeal
the IJ’s decision to the BIA.
Chen filed three motions to reopen. In his first motion, Chen sought relief
under the United Nations Convention Against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment (“CAT”), pursuant to 8 C.F.R. § 208.16(c).
On July 12, 1999, the IJ denied Chen’s motion to reopen. Chen appealed the IJ’s
decision to the BIA. On May 6, 2002, the BIA affirmed without opinion the IJ’s
denial of Chen’s motion to reopen.
In his second motion to reopen, Chen sought adjustment of status based on
an approved labor certificate from the Department of Labor and approved petition
for an employment-based immigration visa. The BIA granted the motion to reopen
2
and remanded the case for further proceedings. Chen filed an application for
adjustment of status. On October 29, 2004, after a hearing, the IJ denied Chen’s
application for adjustment of status. Chen appealed the IJ’s decision to the BIA,
which affirmed without opinion. On June 19, 2007, because of a defect in the
service of its earlier order, the BIA vacated the earlier order and issued a new order
affirming the IJ’s denial of Chen’s application for adjustment of status.
On December 31, 2007, Chen filed the instant motion to reopen, to seek
adjustment of status based on an approved petition for a family-based immigration
visa filed on his behalf by his U.S. citizen sister. Chen attached the approved
petition. On February 14, 2008, the BIA denied Chen’s motion to reopen. The
BIA reasoned that the motion to reopen was filed more than 90 days after the
BIA’s June 19, 2007, final decision and did not fall within any exception to this
time limit. The BIA also reasoned that it found no exceptional circumstances to
warrant sua sponte reopening the proceedings. On March 12, 2008, Chen
submitted a petition for review of the BIA’s February 14, 2008, order.
On appeal, Chen challenges (1) the IJ’s July 11, 1997, denial of his asylum
application; (2) the IJ’s July 12, 1999, denial of his first motion to reopen, which
sought CAT relief; (3) the BIA’s May 6, 2002, affirmance of the IJ’s denial of that
motion to reopen; (4) the IJ’s October, 29, 2004, denial of his application for
adjustment of status based on his approved petition for an employment-based
3
immigration visa; (5) the BIA’s June 19, 2007, affirmance of the IJ’s denial of that
application for adjustment of status; (6) and the BIA’s February 14, 2008, denial of
his motion to seek adjustment of status based on his approved petition for a family-
based immigration visa.
II. Underlying Orders
Pursuant to 8 U.S.C. § 1252(b)(1), a petitioner has 30 days from the date of a
final order to file his petition for review of that order with this Court. We have
held that the 30-day deadline is “mandatory and jurisdictional.” Dakane v. U.S.
Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir. 2004).
Chen’s petition for review is timely only with regard to the BIA’s February
14, 2008, denial of his last motion to reopen, which sought adjustment of status
based on his approved petition for a family-based immigration visa. See 8 U.S.C.
§ 1252(b)(1). All of the underlying orders challenged by Chen, culminating with
the BIA’s June 19, 2007, affirmance of the IJ’s denial of Chen’s application for
adjustment of status, were filed long before Chen’s March 12, 2008, petition for
review. The BIA’s February 14, 2008, denial of Chen’s motion to reopen,
however, was filed within 30 days of Chen’s petition for review. Accordingly, we
lack jurisdiction to consider any order save the February 14, 2008, order and,
therefore, dismiss the petition insofar as it challenges these other orders. See 8
U.S.C. § 1252(b)(1)); Dakane, 371 F.3d at 773 n.3.
4
III. Final Motion to Reopen
We review the denial of the motion for an abuse of discretion. Anin v.
Reno, 188 F.3d 1273, 1276 (11th Cir. 1999). This judicial review is limited to
determining “whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted).
Under 8 C.F.R. § 1003.2(a) and (c)(1), an alien may move the BIA to reopen
a prior removal order based on new evidence. See also 8 U.S.C.
§ 1229a(c)(7)(C)(ii); INA § 240(c)(7)(C)(ii). However, the alien must file the
motion 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)(2); 8 U.S.C. § 1229a(c)(6)(A) and (C)(i); INA § 240(c)(6)(A) and
(C)(i). This 90-day requirement is “mandatory and jurisdictional, and, therefore, it
is not subject to equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150
(11th Cir. 2005). An exception to the 90-day deadline exists, however, if (a) the
motion to reopen is for the purpose of reapplying for relief “based on changed
circumstances arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and was not available
and could not have been discovered or presented at the previous hearing;” (b) the
5
motion to reopen is agreed upon by all parties and jointly filed; or (c) the motion to
reopen was filed by the INS “in exclusion or deportation proceedings when the
basis of the motion is fraud in the original proceeding or a crime that would
support termination of asylum.” 8 C.F.R. § 1003.2(c)(3); 8 U.S.C.
§ 1229a(c)(7)(C); INA § 240(c)(7)(C).
The BIA did not abuse its discretion in denying Chen’s motion to reopen as
untimely. See Anin, 188 F.3d at 1276. The BIA issued its final order of removal
on June 19, 2007, such that Chen’s motion to reopen, submitted more than 6
months later on December 31, 2007, was filed well beyond the 90-day deadline for
such a motion. See 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(6)(A) and (C)(i);
INA § 240(c)(6)(A) and (C)(i). Also, Chen’s motion to reopen was not based on
changed country conditions, jointly filed, or filed by the INS itself, such that it did
not fall under any of the exceptions to the 90-day deadline. See 8 C.F.R.
§ 1003.2(c)(3); 8 U.S.C. § 1229a(c)(7)(C); INA § 240(c)(7)(C). Accordingly, the
BIA’s exercise of its discretion was neither arbitrary or capricious, and, therefore,
we deny the petition as to this matter. See Garcia-Mir, 766 F.2d at 1490.
IV. Discretion to Sua Sponte Reopen 1
Also under 8 C.F.R. § 1003.2(a), the BIA may reopen proceedings in a case
in which it has rendered a decision at any time upon its own motion. We have held
1
The government raised this issue on appeal.
6
that 8 C.F.R. § 1003.2 “reposes very broad discretion in the BIA ‘to reopen or
reconsider’ any motion it has rendered at any time or, on the other hand, ‘[to] deny
a motion to reopen.’” Anin, 188 F.3d at 1279 (construing 8 C.F.R. § 3.2, which is
substantively identical to 8 C.F.R. § 1003.2). Indeed, we recently held, in Lenis v.
U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008), that the discretion
discussed in Anin was so broad that the we lack jurisdiction to entertain an appeal
of the BIA’s decision not to sua sponte reopen.
The BIA expressly declined to reopen Chen’s removal order sua sponte.
Regardless of whether the BIA’s conclusions were correct, its discretion to refuse
to reopen the case sua sponte was so broad as to be non-reviewable. Id.Accordingly, we lack jurisdiction to review the BIA’s decision and, therefore,
dismiss the petition as to this matter. See id.PETITION DENIED IN PART, DISMISSED IN PART.
7