Chi v. Barr ( 2020 )

18-2350
Chi v. Barr
BIA
A 087 563 620
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 18th day of September, two thousand twenty.
5
6 PRESENT:
7 JON O. NEWMAN,
8 GERARD E. LYNCH,
9 STEVEN J. MENASHI,
10 Circuit Judges. 1
11 _____________________________________
12
13 YUSHUANG CHI,
14 Petitioner,
15
16 v. 18-2350
17 NAC
18 WILLIAM P. BARR, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Louis H. Klein, Esq., The Kasen
24 Law Firm, PLLC, Flushing, NY.
25
1 - Circuit Judge Peter W. Hall, originally a member of the panel, is
currently unavailable. Circuit Judge Jon O. Newman has replaced Judge
Hall on the panel for this matter. See 2d Cir. IOP E(b).
1 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
2 General; Derek C. Julius,
3 Assistant Director; Zoe J. Heller,
4 Senior Litigation Counsel, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is DENIED.
12 Petitioner Yushuang Chi, a native and citizen of China,
13 seeks review of a July 11, 2018, decision of the BIA denying
14 Chi’s untimely motion to reopen proceedings and to reissue
15 its January 2017 decision ordering her removal to China. In
16 re Yushuang Chi, No. A 087 563 620 (B.I.A. Jul. 11, 2018).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history.
19 We review the agency’s denial of a motion to reopen or
20 reissue for abuse of discretion. See Jian Hui Shao v.
21 Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008) (motion to
22 reopen); Ping Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d
23 Cir. 2007) (motion to reissue). “An abuse of discretion may
24 be found in those circumstances where the [BIA’s] decision
25 provides no rational explanation, inexplicably departs from
2
1 established policies, is devoid of any reasoning, or contains
2 only summary or conclusory statements; that is to say, where
3 the [BIA] has acted in an arbitrary or capricious manner.”
4 Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d
5 Cir. 2001) (internal citations omitted).
6 As an initial matter, because Chi has not meaningfully
7 challenged the BIA’s determination that it did not have
8 authority to administratively close her case, she has waived
9 review of that finding. See Yueqing Zhang v. Gonzales, 426
10 F.3d 540, 545 n.7 (2d Cir. 2005) (“Issues not sufficiently
11 argued in the briefs are considered waived and normally will
12 not be addressed on appeal.” (internal quotation marks
13 omitted)). As discussed below, we otherwise find no abuse
14 of discretion in the BIA’s decision.
15 I. Motion to Reopen and Reissue
16 A motion to reopen must “be filed within 90 days of the
17 date of entry of a final administrative order of removal.”
18 8 U.S.C. § 1229a(c)(7)(C)(i). It is undisputed that Chi’s
19 motion was untimely: she filed it in February 2018, more than
20 a year after the BIA affirmed the IJ’s removal order in
21 January 2017. While there are limited exceptions to this
3
1 deadline, including when reopening is sought to apply for
2 asylum based on a change in the country of removal or where
3 counsel was ineffective, Chi does not assert that these
4 exceptions apply. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
5 C.F.R. § 1003.2(c)(3) (listing exceptions); Rashid v.
6 Mukasey, 533 F.3d 127, 130 (2d Cir. 2008) (ineffective
7 assistance); Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA
8 2009) (emphasizing “that untimely motions to reopen to pursue
9 an application for adjustment of status . . . do not fall
10 within any of the statutory or regulatory exceptions to the
11 time limits for motions to reopen before the Board”).
12 Chi instead argues that the BIA should have reopened
13 based on a pending visa petition filed by her lawful permanent
14 resident husband. She relies on In re Velarde-Pacheco, 23
15 I. & N. Dec. 253, 256 (BIA 2002), in which the BIA held that
16 it may grant a “properly filed” motion to reopen for the
17 purpose of applying for adjustment of status where a visa
18 petition is pending and the motion meets five specific
19 requirements. However, Chi did not satisfy the first
20 requirement that the motion be timely filed. In re Velarde-
21 Pacheco, 23 I. & N. Dec. at 256.
4
1 Chi also argues that she merits equitable tolling or
2 reissuance of the BIA’s decision because (1) she was
3 financially unable to file a petition for review of the BIA’s
4 January 2017 decision, and (2) denying reopening would punish
5 her for U.S. Citizenship and Immigration Services taking too
6 long to adjudicate her visa petition and would violate due
7 process.
8 Although “the ninety-day deadline for filing a motion to
9 reopen is subject to equitable tolling under appropriate
10 circumstances,” Xue Yong Zhang v. Holder, 617 F.3d 650, 658
11 (2d Cir. 2010), the BIA did not abuse its discretion in
12 concluding that Chi did not merit equitable tolling or in
13 declining to reissue its decision.
14 First, Chi is essentially arguing that because she could
15 not afford to petition for review earlier, the BIA should
16 excuse her late filed motion to reopen based on a new form of
17 relief. It is unclear how failing to seek review of the
18 BIA’s 2017 decision affirming the denial of asylum relates to
19 her motion to reopen solely to seek adjustment of status based
20 on her marriage—which occurred after the IJ’s removal order.
21 Moreover, Chi was not barred from petitioning for review
5
1 because this Court may waive filing fees for litigants who
2 are unable to pay, and Chi could have proceeded pro se or
3 moved for appointment of pro bono counsel. See 28 U.S.C.
4 § 1915(a)(1), (e)(1).
5 Second, Chi does not state a due process claim because,
6 as noted above, she could have filed a pro se petition for
7 review and requested in forma pauperis status, and Chi does
8 not have a constitutionally protected liberty or property
9 interest in a grant of adjustment of status because it is a
10 discretionary form of relief. See Yuen Jin v. Mukasey, 538
11 F.3d 143, 156–57 (2d Cir. 2008). Moreover, Chi could have
12 pursued this relief earlier. She married her husband in
13 February 2016, before the BIA ruled on her appeal, but her
14 husband did not file the visa petition until almost a year
15 after the BIA’s January 2017 decision.
16 Accordingly, because Chi’s motion did not fall within
17 any exception to the 90-day filing deadline and she did not
18 establish that she was entitled to equitable tolling, the BIA
19 did not abuse its discretion in denying her motion to reopen
20 or reissue.
21 II. Nunc Pro Tunc Relief
6
1 Chi also did not establish that she warranted relief nunc
2 pro tunc. “When a matter is adjudicated nunc pro tunc, it
3 is as if it were done as of the time that it should have been
4 done.” Edwards v. INS, 393 F.3d 299, 308 (2d Cir. 2004).
5 “It is . . . beyond question that an award of nunc pro
6 tunc may, in an appropriate circumstance, be granted as a
7 means of rectifying error in immigration proceedings.” Xue
8 Yong Zhang, 617 F.3d at 665 (quoting Edwards, 393 F.3d at
9 309).
10 Chi raises no legal arguments as to why she deserves nunc
11 pro tunc relief; instead she generally claims that her
12 situation is “sympathetic” and deserving of this equitable
13 relief. Nunc pro tunc relief is not warranted here because
14 there is no agency error: Chi was not deprived of an
15 opportunity to seek a form of relief, here adjustment of
16 status. See Edwards, 393 F.3d at 310. Her visa petition is
17 pending, and her allegation of agency delay is unsupported
18 given that she and her husband waited almost two years after
19 their marriage and almost a year after the BIA’s initial
20 decision affirming her removal order to file the visa
21 petition.
7
1
2 III. Sua Sponte Reopening
3 Absent a timely motion to reopen as set forth in 8 U.S.C.
4 § 1229a(c)(7), the BIA has the authority to reopen sua sponte
5 as a matter of discretion. See 8 C.F.R. § 1003.2(a).
6 However, we lack jurisdiction to review the agency’s
7 “entirely discretionary” decision declining to exercise that
8 authority. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
9 Although there is an exception to this jurisdictional bar if
10 the BIA “misperceived the legal background and thought,
11 incorrectly, that a reopening would necessarily fail,”
12 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009), there
13 was no such misperception here as the BIA simply stated that
14 sua sponte reopening was not warranted and did not opine on
15 Chi’s eligibility for relief.
16 For the foregoing reasons, the petition for review is
17 DENIED. All pending motions and applications are DENIED and
18 stays VACATED.
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe,
21 Clerk of Court
8