Xu Tong Ouyang v. Lynch

13-2767
Ouyang v. Lynch
BIA
A077 957 760
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
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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
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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 25th day of November, two thousand fifteen.
PRESENT:
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
Circuit Judges.
____________________________________
XU TONG OUYANG,
Petitioner,
v. 13-2767
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
*
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 Respondent.
FOR PETITIONER: Vlad Kuzmin, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Kelly J. Walls, Senior
Litigation Counsel; Sara J. Bergene,
Trial Attorney, Office of Immigration
Litigation, Civil Division, 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 for lack of jurisdiction.
Petitioner Xu Tong Ouyang, a native and citizen of China,
seeks review of a June 21, 2013 decision of the BIA denying
his motion to reopen sua sponte. See In re Xu Tong Ouyang,
No. A077 957 760 (B.I.A. June 21, 2013). We assume the
parties’ familiarity with the underlying facts and procedural
history in this case.
It is undisputed that Ouyang’s motion to reopen, filed
approximately nine years after his removal order, was
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). However, the BIA may reopen a case sua sponte
at any time. See 8 C.F.R. § 1003.2(a). We generally lack
jurisdiction to review the BIA’s denial of a motion to reopen
pursuant to its sua sponte authority. See Luna v. Holder, 637
2
F.3d 85, 95-96 (2d Cir. 2011); Ali v. Gonzales, 448 F.3d 515,
518 (2d Cir. 2006). A narrow exception applies where the
agency has misperceived the law, for example, by erroneously
concluding that an application for relief “would necessarily
fail.” Mahmood v. Holder, 570 F.3d 466, 469-71 (2d Cir.
2009). Here, Ouyang does not argue that the BIA misperceived
the law or that Mahmood v. Holder applies; he argues only that
the BIA departed from its “established policies” in declining
to exercise its sua sponte authority. We therefore lack
jurisdiction to review the BIA’s decision not to reopen sua
sponte under 8 C.F.R. § 1003.2(a), because that decision is
“entirely discretionary.” Ali v. Gonzales, 448 F.3d at 518.
Ouyang has not identified any convincing basis for departure
from this rule. The BIA’s decisions to exercise its sua
sponte authority to reopen other cases are not sufficient to
establish jurisdiction here.
For the foregoing reasons, the petition for review is
DISMISSED for lack of jurisdiction. 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
3
accordance with Federal Rule of Appellate Procedure 34(a)(2),
and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4