Zheng v. Garland

19-2561
Zheng v. Garland
BIA
A072 216 761
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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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 27th day of August, two thousand twenty-
one.
PRESENT:
BARRINGTON D. PARKER,
GERARD E. LYNCH,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
SUN WON ZHENG, AKA XINGWANG
ZHENG,
Petitioner,
v. 19-2561
MERRICK B. GARLAND, UNITED
STATES ATTORNEY GENERAL, 1
Respondent.
_____________________________________
FOR PETITIONER: Peter L. Quan, Esq., New York,
NY.
FOR RESPONDENT: Brian M. Boynton, Acting
Assistant Attorney General; Kohsei
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Merrick B. Garland is automatically substituted for Attorney General William
P. Barr.
Ugumori, Senior Litigation
Counsel; Jesse D. Lorenz, Trial
Attorney, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
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 DENIED in part and DISMISSED in part.
Petitioner Sun Won Zheng, a native and citizen of the
People’s Republic of China, seeks review of a July 25, 2019
decision of the BIA denying his motion to reopen Zheng’s
exclusion proceedings. In re Sun Won Zheng, No. A072 216 761
(B.I.A. July 25, 2019). We assume the parties’ familiarity
with the underlying facts and procedural history.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). Before the BIA, Zheng argued
that the time limitation for filing his motion to reopen
should be tolled due to the ineffective assistance of his
former counsel and that his exclusion proceedings should be
reopened to permit him to apply for certain forms of relief.
It is undisputed that Zheng’s 2018 motion to reopen was
untimely because he filed it more than 20 years after his
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exclusion and deportation order became final in 1997. See
8 U.S.C. § 1229a(c)(7)(C)(i) (providing 90-day deadline for
motions to reopen); 8 C.F.R. § 1003.2(c)(2) (same). The BIA
did not err in declining to equitably toll the period for
Zheng to file his motion based on his claim that his former
attorney was ineffective in his underlying exclusion
proceedings because Zheng failed to exercise due diligence
during the more than 20 years that passed between his order
of exclusion and his motion to reopen. See Rashid v. Mukasey,
533 F.3d 127, 131 (2d Cir. 2008); Jian Hua Wang v. BIA, 508
F.3d 710, 715 (2d Cir. 2007).
Because Zheng did not demonstrate that the time
limitation applicable to his motion should be excused, “his
motion to reopen could only be considered upon exercise of
the [BIA’s] sua sponte authority.” Mahmood v. Holder, 570
F.3d 466, 469 (2d Cir. 2009). We lack jurisdiction to review
the agency’s “entirely discretionary” decision declining to
reopen proceedings sua sponte and dismiss the petition to
that extent. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.
2006).
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* * *
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. All pending motions
and applications are DENIED and stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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