Mei Dian Ren v. Holder

09-3476-ag
Ren v. Holder
BIA
A070 891 599
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 17 th day of August, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge.
JON O. NEWMAN,
JOSÉ A. CABRANES,
Circuit Judges.
______________________________________
MEI DIAN REN,
Petitioner,
09-3476-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Thomas V. Massucci, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Civil Division; Anh-Thu P. Mai-Windle,
Thomas B. Fatouros, Senior Litigation
Counsel, 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.
Petitioner, Mei Dian Ren, a native and citizen of China,
seeks review of a July 22, 2009, order of the BIA denying his
motion to reopen. In re Mei Dian Ren, No. A070 891 599
(B.I.A. July 22, 2009). We assume the parties’ familiarity
with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). An alien may only file one motion to reopen and
must do so within 90 days of the agency’s final administrative
decision unless a regulatory exception applies. 8 C.F.R.
§ 1003.2(c). The BIA may reopen proceedings sua sponte if no
exception applies, but we lack jurisdiction to review such
discretionary determinations if the BIA applied the correct
legal framework. See Mahmood v. Holder, 570 F.3d 466, 469 (2d
Cir. 2009).
We lack jurisdiction to review the BIA’s discretionary
denial of Ren’s motion to reopen. Ren sought to reopen the
BIA’s 2002 decision “in the interests of justice” so that he
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could file a brief in support of his appeal. However, the
BIA’s clerical error, which resulted in ineffective service of
the transcript, briefing schedule, and BIA decision, does not
constitute an exception to the statutory time limitation for
motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii). Thus,
Ren was necessarily invoking the BIA’s authority to reopen his
proceedings sua sponte. See 8 C.F.R. § 1003.2(a); Mahmood,
570 F.3d at 469 (where an “untimely motion to reopen was not
excused by any regulatory exception, [the] motion to reopen
could only be considered upon exercise of the Agency’s sua
sponte authority”). The BIA’s determination as to whether it
will exercise its sua sponte authority is entirely
discretionary and thus beyond the scope of this Court’s
jurisdiction. See Ali, 448 F.3d at 517. There is no
indication in the record that the BIA misunderstood its
authority or “misperceived the legal background.” See
Mahmood, 570 F.3d at 469. Therefore, because the BIA applied
the correct legal framework, this Court lacks jurisdiction to
review its discretionary denial of Ren’s motion to reopen.
See id.
For the foregoing reasons, the petition for review is
DISMISSED. As we have completed our review, any stay of
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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 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
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