Kon Dang Chen v. Holder ( 2010 )

09-2178-ag
Chen v. Holder
BIA
A072 483 260
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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27 th day of August, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JON O. NEWMAN,
10 DENNY CHIN,
11 Circuit Judges.
12
13
14 KON DANG CHEN, a.k.a. KONG DENG
15 CHEN,
16 Petitioner,
17 09-2178-ag
18 v. NAC
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23
24
25 FOR PETITIONER: Pro se.
26
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General, Civil Division; Anh-Thu P.
30 Mai-Windle, Senior Litigation
31 Counsel; Imran R. Zaidi, Attorney,
32 Office of Immigration Litigation,
33 Civil Division, United States
34 Department of Justice, Washington,
35 D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DISMISSED.
5 Petitioner Kon Dang Chen, a native and citizen of the
6 People’s Republic of China, seeks review of an April 22,
7 2009, order of the BIA denying his motion to reopen. In re
8 Kon Dang Chen, No. A072 483 260 (B.I.A. Apr. 22, 2009). We
9 assume the parties’ familiarity with the underlying facts
10 and procedural history of the case.
11 We review the BIA’s denial of Chen’s motion to reopen
12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). An alien may only file one motion to reopen
14 and must do so within 90 days of the final administrative
15 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
16 The BIA did not abuse its discretion in denying the motion
17 to reopen.
18 Chen’s motion, which was indisputably untimely, sought
19 reopening to apply for adjustment of status. However,
20 eligibility for adjustment of status is not an exception to
21 the applicable time limitation on motions to reopen.
22 See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3)(ii);
2
1 see also Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA
2 2009) (emphasizing “that untimely motions to reopen to
3 pursue an application for adjustment of status . . . do not
4 fall within any of the statutory or regulatory exceptions to
5 the time limits for motions to reopen before the Board”).
6 Thus, to the extent Chen sought reopening to pursue such
7 relief, he was necessarily invoking the BIA’s authority to
8 reopen his proceedings sua sponte. See Mahmood v. Holder,
9 570 F.3d 466, 469 (2d Cir. 2009) (“Because Mahmood’s
10 untimely motion to reopen was not excused by any regulatory
11 exception, his motion to reopen could only be considered
12 upon exercise of the Agency’s sua sponte authority.”);
13 8 C.F.R. § 1003.2(a).
14 The BIA’s decision whether to exercise its sua sponte
15 authority is entirely discretionary and thus beyond the
16 scope of our jurisdiction. See Ali, 448 F.3d at 518. In
17 Mahmood v. Holder, we found that “where the Agency may have
18 declined to exercise its sua sponte authority because it
19 misperceived the legal background and thought, incorrectly,
20 that a reopening would necessarily fail, remand to the
21 Agency for reconsideration in view of the correct law is
22 appropriate.” Mahmood, 570 F.3d at 469; see also Aslam v.
3
1 Mukasey, 537 F.3d 110, 115 (2d Cir. 2008) (drawing the
2 distinction between discretionary and eligibility
3 determinations and finding that as a statutory matter we
4 have jurisdiction to review the latter but not the former).
5 However, there is no indication in this case that the BIA
6 misperceived the law in declining to reopen Chen’s
7 proceedings. To the contrary, the BIA found that a
8 favorable exercise of its discretion was not warranted
9 because Chen “only became potentially eligible for
10 adjustment of status by virtue of his marriage over 6 years
11 after the final order was entered in his case.”
12 For the foregoing reasons, the petition for review is
13 DISMISSED. As we have completed our review, any pending
14 motion for a stay of removal in this petition is DISMISSED
15 as moot. Any pending request for oral argument in this
16 petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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