Feng Zheng v. Lynch

14-2435
Zheng v. Lynch
BIA
A098 288 963
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.
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
21st day of July, two thousand fifteen.
PRESENT:
RALPH K. WINTER,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
_____________________________________
FENG ZHENG,
Petitioner,
v. 14-2435
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Jay Ho Lee, New York, New York.
* 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 the Respondent in this case.
FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
Attorney General; Christopher C.
Fuler, Deputy Chief, Alison Marie
Igoe, Senior Counsel for National
Security, National Security Unit,
Office of Immigration Litigation,
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.
Petitioner Feng Zheng, a native and citizen of the People’s
Republic of China, seeks review of a June 12, 2014, decision
of the BIA denying her motion to reconsider. In re Feng Zheng,
No. A098 288 963 (B.I.A. June 12, 2014). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
A motion to reconsider must be filed within 30 days of the
challenged decision and must specify an error of law or fact
in that decision. 8 C.F.R. § 1003.2(b)(2). Because Zheng’s
2014 motion to reconsider was filed more than seven years after
the 2006 decision she asked the BIA to reconsider, the BIA did
not abuse its discretion in denying the motion as untimely.
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Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007)
(per curiam). However, Zheng does not challenge the BIA’s
denial of her motion to reconsider as untimely; instead, she
argues that the BIA abused its discretion in declining to
exercise its sua sponte authority to reconsider.
We lack jurisdiction to review the BIA’s determination that
a case does not warrant the exercise of its sua sponte authority.
See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006).
Nonetheless, where the BIA may have declined to exercise its
sua sponte authority “because it misperceived the legal
background,” we retain jurisdiction and remand may be
appropriate for consideration of the correct law. Mahmood v.
Holder, 570 F.3d 466, 469 (2d Cir. 2009).
Contrary to Zheng’s contention, the BIA did not misperceive
the legal background when it declined to reconsider its prior
decision based on Zheng’s argument that Negusie v. Holder, 555
U.S. 511 (2009), affected the analysis of whether she was
subject to the persecutor bar to asylum. Negusie was issued
in 2009, three years after the BIA’s decision and five years
before Zheng moved to reconsider. Furthermore, the Supreme
Court remanded Negusie to the BIA for a determination in the
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first instance of whether there was a duress exception to the
persecutor bar. Negusie, 555 U.S. at 523-24. Zheng does not
argue that she was under duress when, as a nurse in China, she
assisted in forced sterilizations and abortions. Indeed, the
record shows that Zheng’s actions were voluntary: she testified
that she assisted in sterilizations and abortions because it
was her job to do so, and an immigration judge concluded that
Zheng did not qualify for asylum “because she voluntarily
participated in the persecution of others.” Accordingly, we
lack jurisdiction to review Zheng’s petition. See Ali, 448
F.3d at 518; cf. Mahmood, 570 F.3d at 469-71.
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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