De-Ming Chen v. Holder , 345 F. App'x 709 ( 2009 )

SUMMARY ORDER

Petitioner De-Ming Chen, a native and citizen of the People’s Republic of China, seeks review of the August 19, 2008 order of the BIA denying his motion to reconsider. In re De-Ming Chen, No. A071 603 548 (B.I.A. Aug. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Chen’s motion was properly construed as a motion to reconsider. See 8 C.F.R. § 1003.2(b)(2). Ordinarily, we review the BIA’s denial of a motion to reconsider for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005). Here, however, we lack jurisdiction to consider Chen’s challenges to the denial of his untimely and numerically barred motion to reconsider.

Chen does not dispute that his motion to reconsider is subject to the time and numerical limits prescribed in 8 C.F.R. § 1003.2(b)(2). While that regulation provides no exception to those limits, the BIA has held that it may — on its own motion— reconsider a prior decision based on “a fundamental change in the law.” Matter of G-D-, 22 I. & N. Dec. 1132, 1135 (BIA 1999). We lack jurisdiction to review a decision of the BIA not to reconsider a case sua sponte because such a decision is “entirely discretionary.” Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).

For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).